author: Hardin, P. J.: Meewin, J.: Maetin, J.

text:
    LUCIEN S. CRANDALL, Respondent, v. ERNEST R. BARRON and Others, as Executors of the Last Will and Testament of JAMES DENSMORE, Deceased, Appellants.

      Libel — charge as to the proper measure of damages.

    In an action to recover damages for an alleged libel, in which the plaintiff was charged to be “a veritable liar and scoundrel,” and to have had immoral relations with women, the judge charged the jury, among other things, that “if Lucien Crandall is a lecherous man, if he is an immoral man m his relations with women, and he has any character besides that, he is entitled to have it protected. If he is a liar and a scoundrel, and is not an impure man, he is entitled to be protected.”

      Held, that the charge was erroneous and was calculated to draw the minds of the jurors aside from the proper rule in respect to damages.
    Appeal by tbe defendants from a judgment, entered in the office of the clerk of the county of Cortland on the 10th day of February, 1887, in favor of the plaintiff; and also from an order denying a motion for a new trial, made upon the minutes of said court, and. entered in the office of the clerk of Cortland county on February 11, 188Y, after a trial at the Cortland Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $10,000.
    The action was brought to recover damages alleged to have been caused to the plaintiff by a libel written by the defendant James Densmore with respect to the plaintiff, which, among other things, stated “Crandall is a veritable liar and scoundrel;” and also charging that the said Crandall had been guilty of certain immoralities in cohabiting with a married woman.

      A. P. Smith, for the appellants.

      F. c& T. F. Oourtney, W. P. Goodelle and J. F. Eggleston, for the respondent.
   Hardin, P. J.:

In the course of the charge delivered to the jury, the trial judge observed: “ It is your duty, as jurors, to extend this protection not only to the man who is poor, not only to the man who is ignorant, but the meanest man in your county, in your State, has the same right as the best citizen to come into court, and you have got to give him just the same protection. Let me illustrate this by referring to a case which was tried before me. A man in Broome county sued a bridge company in New Jersey for negligence, in consequence of which a guy rope broke while they were erecting a bridge, and knocked him off from an abutment nineteen feet in height. To save himself he whirled about as he was struck, and jumped, striking upon his feet. He was made a cripple for life. Upon that trial the defense sought to 'show, and did show, that the reason why that man was crippled for life was because he was badly diseased with syphilis, claiming for that reason they were not responsible for the damages in that case. After some examination of the question I instructed the jury and found myself thoroughly backed up by the Court of Appeals; that it was not for the defendants in that action to punish that man for his sins against God or against society. He was entitled to the same damages as if his life had always been a moral life, and, more than that, if by reason of his own vices he was in such a condition that his damages were greater than they would otherwise have been, he was entitled to recover greater damages than if he had been a sound man. Applying this principle to this case, if Lucien Crandall is a lecherous man, if he is an immoral man in his relations with women, and he has any character left besides that, he is entitled to have it protected. If he is a liar and a scoundrel, and is not an impure man, he is entitled to be protected, and it is your duty and it is my duty to protect him. It is a solemn duty and you must not be carried away by passion or prejudice, but remember that tbe beauty of our law, tbe purity and integrity of our courts, consist in equal and exact justice to every suitor who comes into court.” An exception was taken to that part of the charge where the court said: “ That if Lucien Crandall is a lecherous man, and he has any character besides, that he had a right to protection, etc., and your duty is an important duty,” etc.

It seems to me that the rule laid down by the learned trial judge in that portion of the charge quoted, and the comments thereon, were erroneous, and that the exception was well taken. The language of the charge was calculated to draw the mind of the jury aside from the proper rule in respect to damages; it may have been prejudicial in producing the large verdict rendered by the jury. It seems to me we ought not to accept a verdict coming from a jury after such instructions as were delivered to them in this case. Without passing upon the numerous other exceptions found in the appeal book, I find myself constrained to vote for a reversal of the order and judgment.

Order and judgment reversed and a new trial ordered, with costs to abide the event.

Meewin, J.:

I think this judgment should be reversed. That portion of the charge referred to by the presiding justice, would, I think, be likely to mislead the jury. Besides, I am of the opinion that the trial court improperly, under the circumstances of this case, allowed the letter of 1883 to be read by plaintiff’s counsel to the jury at the opening of the case.

Maetin, J.

(dissenting):

The only ground of reversal upon which a majority of the court agree is, that the exceptions taken by the defendant to the portion of the charge quoted in the opinion of the presiding justice were well taken. The whole of the charge upon that subject was as follows:

Gentlemen oe the Juey. — A man has the natural right, as it is called, to protect himself, to fight for his protection. He has the right, the natural right, to protect his person, to protect his property, to protect his reputation. Winters upon social science say that when a man enters civilized society lie surrenders the right of protecting himself, his person, his property and his reputation in consideration of the agreement of society or the government to protect him. Therefore the citizen has a lawful right, and a right founded upon a consideration, to call upon the government and the laws of his country, if he is assaulted in his person, in his property or his reputation, to call for protection. It would be a worthless government which did not protect its citizens. A government extends the cegis of its protection over all citizens alike; over the high and the low, the rich and the poor, the moral and the immoral. Every citizen has the same right to come into court and demand the same protection. So, gentlemen, it is our duty, it is your duty as jurors, to extend this protection not only to the man who is poor, not only to the man who is ignorant, but the meanest man in your country, in your State, has the same right as the- best citizen to come into-court, and you have got to give him just the same protection. Let me illustrate this by referring to a case which was tried before me. A man in Broome county sued a bridge company in New Jersey for negligence in consequence of which a guy rope broke while they were erecting a bridge, and knocked him off from an abutment nineteen feet in height. To save himself he whirled about as he was struck and jumped, striking upon his feet. ILe was made a cripple for life. Upon that trial the defense sought to show, and did show, that the reason why that man was crippled for life was because he was badly diseased with syphilis, claiming for that reason they were not responsible for the damages in that case. After some examination of the question I instructed the jury, and found myself thoroughly backed up by the Court of Appeals, that it was not for the defendants in that action to punish that man for his sins against God or against society. ,He was entitled to the same damages as if his life had been a moral life; and, more than that, if by reason of his own vices he was in such a condition that his damages were greater than they would otherwise have been, he was entitled to recover greater damages than if he had been a sound man.-
Applying this principle to this case, if Lucien Crandall is a lecherous man, if he is an immoral man in his relations with women, and he has any character left besides that, he is entitled to have it protected. If he is a liar and a scoundrel, and is not an impure man, he is entitled to be protected; and it is your duty and it is my duty to protect him. It is a solemn duty, and you must not be carried away by passion or prejudice, but remember that the beauty of our law, the purity and integrity of our courts consist in equal and exact justice to every suitor who comes into court.” To this portion of the charge the following exceptions were taken: “We except to that part of the charge about the case of negligence mentioned by the court as proper to this ease, and what the court said upon that subject ; also where the court said that if Lueien Crandall is a lecherous man, and he has any character besides, that he had a right to protection, etc., and your duty is an important duty,” etc.

From a careful examination of the whole charge it seems to me that the manifest purpose and effect of this portion of it was to impress upon the jury the duty of determining the question of the defendant’s liability from the evidence, uncontrolled by any extrinsic facts or circumstances which did not relate to the libel for which the plaintiff sought to recover in this action, and to instruct it that, even though the plaintiff’s character was not perfect in certain respects, it did not bar the plaintiff’s right to a recovery for a libel upon his character in other respects. The language of the court in applying to the case the illustration given was, “ If Lueien Crandall is a lecherous man, if he is an immoral man in his relations with women, and he has cmy character left besides that, he is enUtled to hme it protectedThus the application of this illustration was limited to the statement that a person who has any character left may maintain an action for an injury to it, although his character in other respects may not be perfect. As thus limited, it was hot, I think, the subject of a valid exception. It will be observed that the court, in this portion of the charge, was not discussing the question of the amount of damages which the plaintiff might recover, but was simply instructing the jury as to the right of the plaintiff to maintain the action, his right to come into court and seek redress for such injury as he had actually sustained. I can discover no reason for holding that this portion of the charge was erroneous, nor do I think it “ was calculated to withdraw the mind of the jury aside from the proper rule in respect to damages.” The court, in another portion of the charge, instructed the jury upon the question of damages. If the charge upon that question was not full enough, or was in any way unsatisfactory to the defendant, he should have requested the court to charge more fully upon the question or excepted to that portion of the charge as made.

On the trial Mr. Courtney, the plaintiffs counsel, proposed to read a letter written by the defendant under the date of March 21, 1883. This letter was partially set out in the complaint and set out in full in the defendant’s answer. When the plaintiff proposed to read the letter the defendant’s counsel said: “ The letter he proposes to read is barred by the statute and we will object to its being read in the case, and we object to it until it is admitted in the case. We object to their reading the letter in their opening. We do not object to their stating what they propose to prove.” .

The Court — Of course, if this evidence is incompetent to go to the jury, the court ought not to permit it to be gotten before the jury by indirection or by the reading of it in the opening. It is difficult for me to say whether this can be given before the jury or not until the question arises. * * *

Plaintiff’s Counsel — It is set up in the answer in full.

The Court — You may read the answer.

Defendant’s Counsel- — We except to the ruling of the court permitting them to read the answer.

The Court — It is stated by the counsel, and conceded, that this letter is set up in the answer and is justified by the special plea of justification in the answer.

Defendant’s Counsel — And also that the statute of limitations is set up against it.

Answer read to jury.

I do not think it can be properly said that this ruling was erroneous or that the court abused its discretion in permitting the plaintiff to read the defendant’s answer in opening the case to the jury. The correctness of this ruling seems to be fully sustained by the authorities. (Tisdale v. D. and H. G. Co., 116 N. Y., 416; Holmes v. Jones, 31 N. Y. S. Rep., 379, 381.)

These views lead me to dissent from the opinions of my brethren in this case.

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


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    THE SALT SPRINGS NATIONAL BANK OF SYRACUSE, Respondent, v. GEORGE B. SLOAN, Appellant.

      Bond conditioned for the exercise of diligence on the pa/rt of the obligee in collecting the debt gum'cmteed thereby— the exercise of diligence must be shown.

    An action was brought upon a bond conditioned “that if the above-bounden George B. Sloan shall, within one year from the date hereof, pay the said, The Salt Springs National Bank of Syracuse, any deficiency up to the said sum of $5,000, remaining unpaid to said bank on said drafts, and which the said, The Salt Springs National Bank of Syracuse, after due diligence, shall fail to collect within the time above limited,” then this obligation shall be void. The complaint contained no allegation of the performance by the bank of the conditions mentioned in the bond, or that it had exercised any diligence in respect to the collection of the debts held by it.

      Held, that the surety, the obligor upon the bond, was entitled to have the exact terms of the bond complied with before he was called upon, under the terms of the bond, to fulfill the obligation thereby entered into by him, and that judgment was improperly given against him thereon.
    Appeal by the defendant George B. Sloan from a judgment of the Supreme Court, entered in the office of the clerk of the county of Onondaga on the 22d day of October, 1889, in favor of the plaintiff, after a trial before the court and a jury at the Onondaga Circuit, at which a verdict was rendered in favor of the plaintiff, by direction of the court, for the sum of $5,501.67.
    The action was brought to recover upon a bond executed by the defendant and delivered to the plaintiff.
    In the fall of 1886 the firm of W. J. Austen & Co., who were doing business in the city of Oswego, drew several drafts on Baker & Clark, then doing business in the city of New York, which drafts were accepted and thereafter discounted by the plaintiff. Baker & Clark made an assignment for the benefit of their creditors to one Clarence E. Birdseye, of New York city, before any of said drafts came due and payable, and they preferred the plaintiff in class B in “ the sum of about $7,000, owing to said bank, for the amount due upon certain drafts by said William J. Austen & Co., upon and accepted by said Baker & Clark, and by said bank discounted for said Baker & Clark.” On the 19th day of February, 1887, the bank held the aforesaid drafts (the same being wholly unpaid), and on that day the defendant executed and delivered to the plaintiff his bond in the penal sum of $5,000, which bond, after reciting the aforesaid drafts and the making of the assignment as aforesaid, contained the following condition: “Now, therefore, the condition of this obligation is such that if the above bounden George B. Sloan shall, within one year from the date hereof, pay the said The Salt Springs National Bank of Syracuse, any deficiency up to the said sum of $5,000 remaining unpaid to said bank on said drafts, and which the said, The Salt Springs National Bank of Syracuse, after due diligence, shall fail to collect within the time above limited, from the said Baker & Clark, or either of them, or from the said Clarence F. Birdseye, as assignee as aforesaid or otherwise, then this obligation to become void, otherwise to remain in full force and virtue.” Upon receiving said bond the bank executed a receipt acknowledging the delivery of the bond, and in the receipt stated that it had received the bond upon the following terms and conditions, and the terms and conditions in said bond set out, to wit: “ Said bank shall use due diligence to collect the six drafts named in said bond from Clarence F. Birdseye, of New York city, as assignee of the Baker & Clark named in said bond, or from Baker & Clark, and out of the moneys obtained from said assignee or from any person who may pay said drafts in behalf of said Baker & Clark, this bank shall first apply the same to the payment of said six drafts, and when said bank has fully paid said six drafts, interest, cost and protest fees, then this bank shall surrender up said bond, and after said bank shall have received its pay in full on said six drafts, including interest, cost and protest fees, from said assignee, said Baker & Clark, or any person who may pay said bank on their behalf, then any surplus moneys, if any, which may have been paid by said Sloan on said bond shall be refunded to said Sloan. This paper not to extend the time of the payment of said bond, nor change the terms of said bond, and said Sloan shall be subrogated to all the rights of the said bank in and to said drafts, to the amount that he may pay on said drafts after said bank shall be finally paid.
    “ Dated February 19th, 1887.
    “ SALT SPRINGS NATIONAL BANK,
    “ By A. A. Howlett,
    “ President.”

      It is averred in the plaintiffs complaint, after referring to the said bond, viz.: “ The defendant then and there covenanted with the plaintiff, under his hand and seal, to pay to the plaintiff the sum of $5,000 within one year after the date thereof, to wit: Within one year after the said 19 th day of February, 1887.” It is averred also in the complaint that “ on or about the 19th day of February, 1888, said sum of $5,000 became due and payable from the defendant to the plaintiff, and the plaintiff demanded payment of the same from the defendant, but the same was not paid, nor any part thereof.” The complaint contains no allegation of the performance by the bank of the conditions mentioned in the bond, or that it exercised any diligence in respect to the collection of the debts held by it. In the answer it is alleged “ that plaintiffs pledged themselves to use the greatest efforts to collect said drafts, and all of them, from the acceptors, and that * * * the sum of $500.00 was then and there paid to plaintiffs to pay their expenses in making the necessary effort to collect said drafts from the acceptors, and this defendant, upon such statements and in consideration therefor, and because of the same, and not otherwise, executed and delivered to plaintiff his bond in wilting.” In further answering the defendant alleges: “ That, having obtained his bond as set forth above, the plaintiff has ever since failed and neglected and refused to do anything toward the collection or enforcement of said drafts in question, from or against the said acceptors, or their funds or assignee, as defendant is informed and believes, and has failed to use due diligence to collect the same as agreed, and has failed in all points to do and perform its duties as set forth in said bond and agreement; and has, as defendant is informed and believes, failed to even put said drafts into judgment; and has failed to examine into the affairs of said acceptors, Baker & Clark, or of their assignee; and has, as defendant is informed and believes, remained quiet and inert and permitted the estate to be dissipated, and has not collected any part of said drafts whatsoever, nor made any effort, nor used due diligence, to do the same.” When the plaintiff rested the defendant moved for a nonsuit upon the following grounds :
    “ First. Because the plaintiff has failed to prove facts sufficient to constitute a cause of action :

      “(a.) By not showing execution issued against the principal debtors and returned before suit brought.

      “ (l.) By showing the execution was not issued until the year limited by the bond had expired.
    “ (c.) By showing one draft was never sued.

      “ (d.) By voluntarily giving Baker & Clark time to answer to the complaint.
    “ Second. Because the plaintiff has been guilty of laches in not pushing the drafts to judgment and issuing execution thereon.
    “ Third. Because the plaintiff has failed to show £ due diligence ’ the condition precedent expressed in the bond.”
    The court reserved the question until the close of the evidence. "When the evidence was closed the motion was renewed upon the same grounds as stated at the close of the plaintiff’s case. It was then conceded that this action was commenced on the 17th day of March, 1888. Before the motion was decided the plaintiff asked the court “ upon the facts in the case to direct a verdict in behalf of the plaintiff.” Thereupon the court observed, viz.: ££ I don’t think I can nonsuit in this case.” To that ruling the defendant took an exception. Thereupon the court observed: “ I will order a verdict for the plaintiff.” Thereupon the defendant took an exception. The defendant’s counsel observed: ££ I ask to go to the jury. Denied ; exception for defendant.”
    The court thereupon ordered a verdict for the plaintiff for $5,501.67. From the judgment entered upon that verdict this appeal was taken.

      E. B. Powell and F. E. Hamilton, for the appellant.

      Frank H. Hiscock, for the respondent.
   Hardin, P. J.:

February 19, 1887, plaintiff held drafts under discount drawn by Austen & Co., of Oswego, upon Baker & Clark of New York city which had been accepted and grown overdue, and the defendant on that day delivered to the plaintiff his bond conditioned to pay up to the sum of $5,000 of said debt, providing the plaintiff should use due diligence to collect the same of the acceptors or their assignee. A claim was filed with the assignee by the plaintiff. Plaintiff took no proceedings against the assignee, and in no manner sought to coerce the final settlement of his accounts. No such final settlement lias been had. Plaintiff brought suit against Baker & Clark upon five of the six drafts and obtained personal service on the ■-- day of August on one of the defendants, and on the 7th of ' September, 1887, upon the other defendant. In that suit judgment was nqt taken and entered until the 4th day of January, 1888. An execution was issued on the 17th day of February, 1888, but the same had not been returned when the action was brought on the 17th day of March, 1888; it was returned, however, nulla bona on the 12th day of April, 1888. The answer of the defendant sufficiently alleges the negligence, laches and failure of the plaintiff to use diligence in collecting the debt held by it mentioned in the bond executed by the defendant. When he delivered the bond he became a surety, a guarantor of the collection of the debt, or so much thereof as mentioned in the bond. Reading the bond in the light of the surrounding circumstances, and construing the same with the receipt or agreement made by the plaintiff when it took the bond (Evansville Nat. Bank v. Kauffmann, 93 N. Y., 273), we are of the opinion that the defendant stipulated, as a condition precedent to his promise to pay, that the plaintiff should use due diligence to collect the debt of the acceptors and their assignee. When Griffith v. Robertson (15 Hun, 344) was before this court attention was given to an instrument containing a guaranty of collection, and speaking for the court in that case, I said: “We think the instrument executed by the defendant Robertson must be construed and held to be a guaranty of collection. In such a guaranty it is a condition precedent that the creditor shall diligently endeavor to collect the amount of the principal debtor, by exhausting the ordinary legal remedies for that purpose, and a failure to do so works a discharge of the guarantor.” This doctrine was laid down by Talcott, J., in Northern Insurance Company of New York v. Wright (13 Hun, 168; S. C., affirmed, 76 N. Y., 445), and cases sustaining the dootrrm are cited. (Kieys v. Tifft, 1 Cow., 98; Craig v. Parkis, 40 N. Y., 181; Moakley v. Riggs, 19 Johns., 69; Loveland v. Shepard, 2 Hill, 139.) In delivering the opinion of the Court of Appeals in. Northern Insurance Company of New York v. Wright, affirming the same case in 13 Hun, 166, Chubch, Ch. J., said: u The law is well settled in this State tbat sucb a guaranty is an undertaking to pay the sum secured by the obligation guaranteed, ¡provided the principal is prosecuted to judgment and execution with due diligence, and the same cannot be collected of him. Due diligence in exhausting the legal remedies against the principal is a condition precedent to any liability against the guarantor. Nor will proof of insolvency or inability to pay on the part of the principal avail as a substitute for a failure to pursue the legal remedies. (Craig v. Parkis, 40 N. Y., 181.) It follows that this condition is a part of the contract, and must shown to have been performed, as a demand and protest of a note must be shown in order to fix the liability of an indorser.” The case from which we have just quoted was decided in 1879. It was referred to and followed by this court in Tiffany v. Willis (30 Hun, 266), decided in 1883. The same doctrine is reiterated by the Court of Appeals in Schmitz v. Langhaar (88 N. Y., 506), viz.: “ In such a case the law in this State construes the obligation as an undertaking, that the demand is collectible by due course of law, and the guarantor bound to pay the sum specified in the original contract, £ provided the principal is prosecuted to judgment and execution with due diligence, and the same cannot be collected of him.’ (Craig v. Parkis, 40 N. Y., 181.) We have come to regard these proceedings, and the return of the proper officer that the writ cannot be enforced, as the best evidence that the method of procedure prescribed by law for the collection of debts has been followed and of the debtor’s inability to pay.” In the case from which we have just quoted the guaranty was of the collection of a claim against a deceased party, and the court took occasion to point out the difference between this case and that of a guaranty of the collection of a claim against a living debtor’, and probably the doctrine of that case is sufficient to warrant us in supposing the diligence due from the plaintiff, so far as the assignee of Baker & Clark was concerned, was evidenced by a presentment of the claim to the assignee, but we find nothing in that case which absolves the plaintiff from exercising due diligence against Baker & Clark, the acceptors. A nonperformance of tbe duty of the plaintiff to prosecute to judgment and execution, and a return thereof of the claim against the acceptors cannot be excused by showing that the debtors were insolvent and that, apparently or probably, nothing would have been obtained from them by means of a judgment and execution. (Craig v. Parkis, 40 N. Y., 181.) The diligence which the defendant exacted was required to be shown during the year mentioned in his bond. The plaintiff did not enter judgment as soon as the defendant’s time to answer had expired in the action brought against the acceptors; on the contrary, it gave several stipulations extending the time to answer and postponing its right to enter up judgment. It appears that the extensions voluntarily given by the plaintiff allowed ninety-nine days more time to the debtors to answer than by due process of law they were entitled to. When this action was brought the plaintiff had not used or exhibited that diligence required by the conditions of the bond executed by the defendant, therefore its right of recovery did not exist according to the terms of the defendant’s contract. As we have already observed, defendant was entitled, as he was a surety, to have the exact terms of his bond complied with before he was called upon under the terms of the bond for a fulfillment of the promise on his part in respect to the payment of the sum of $5,000 stated in the bond. There is nothing in the evidence indicating any waiver of the terms of the bond. To make out such waiver there must be clear and convincing evidence. (Northern Ins. Co. of New York v. Wright, 13 Hun, 168; S. C., affirmed 76 N. Y., 445.) On the contrary, we think the plaintiff’s attorney or agent was, from time to time, notified that the defendant would not pay unless plaintiff used due and legal diligence. Clear intimations to that effect were given.

We are of the opinion that the evidence offered by the plaintiff, when read with the evidence offered by the defendant, did not establish that the plaintiff had used due diligence “ within the time limited in the bond,” and that the laches and negligence of the plaintiff appearing in the case were such that the trial court ought not to have held, as matter of law, that plaintiff was free from negligence and laches and had fully complied with the tenor and terms of the bond executed by the defendaut. We think it was error to direct a verdict in favor of the plaintiff. (Thomas v. Woods, 4 Cowen, 173; Backus v. Shipherd, 11 Wend., 634.) We think a new trial should be ordered.

Martin and Merwin, JJ., concurred.

Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event.


text:
    ISAAC H. COTANCH, Respondent, v. WILLIAM M. GROVER, APPELLANT.

      Street commissioner of a village — what evidence of Ms authority to act is sufficient.

    Where, at a meeting of the hoard of trustees of a village, incorporated under Chapter 291 of the Laws of 1870, a person is appointed street commissioner thereof, and the president and clerk of the village are authorized to give the commissioner orders on the treasurer for such amount as he needs from time to time, and a bond is given by the commissioner, with a sufficient surety, for the faithful performance of the duties of that office, which is approved and is filed with the clerk of the village, and the person so named as street commissioner takes the oath of office, and, in fact, performs the duties of such office, he becomes a defacto street commissioner, and it is not necessary that any commission should be actually issued to him as street commissioner.

      Semble, that the action of the board of village trustees, evidenced by a resolution appointing a street commissioner, is sufficient authority to the commissioner to act when the oath of office is taken and the bond is given as prescribed by law.

      People ex rel. Babcock v. Murray (70 N. Y., 521) distinguished.
    Appeal by the defendant William M. Grover from a judgment of tbe County Court of Tompkins county, entered in the office of the clerk of said' county on the 4th day of January, 1890, with notice of an intention to bring up for review, upon such aj>peal, the order denying a motion for a new trial, made on a case containing excepr tions, and entered in said clerk’s office on the same day.
    The action was tried at a term of the County Court, held at the city of Ithaca, in Tompkins county, on May 16,1889, at which a verdict was rendered by the jury, in favor of the plaintiff, for fifty dollars damages.
    The action was commenced in a Justice’s Court and a verdict was rendered for the plaintiff, and an appeal was taken to the County Court where a new trial was had. In the complaint it is alleged that the plaintiff is tbe owner of certain premises therein described, situate in the village of Freeville, in the town of Dryden, on the north side of the highway running east and west in said village; and that the “ premises are adjacent to and facing the said road, but on a slight elevation, which was sustained by a natural grade or slope to the said street; that the defendant, on or about the first of September, 1888, and at divers times prior and subsequent thereto, wrongfully dug up, and caused to be dug up and carried away from plaintiff’s premises, within the limits of said street, large quantities of soil and dirt, for a distance of eight or ten rods, or thereabouts, in front of these premises, and cut down a deep excavation the whole length of the premises and about three or four feet deep, leaving a gully there, to within about three or four feet of the plaintiff’s fence; that the said soil and earth was carried to places in said village a long distance from plaintiff’s premises, and used for private individuals as well as for the highways; that it was not necessary to take away plaintiff’s soil and earth and damage his property, there being other accessible dirt that was nearer by; that the aforesaid excavation and carrying away of plaintiff’s earth and soil has caused large damage to his premises, rendered them inconvenient by way of ingress and egress, and lessening the value thereof.”
    The answer contained a denial and alleged that the defendant at all the times mentioned in the complaint “ was the street commissioner of the village of Freeville, a domestic municipal corporation duly organized and created under and by virtue of the laws of the State of New York; that the premises and the highway mentioned in said complaint are both within the corporate limits of the said village of Freevillethat whatever the defendant did in working on said highway and in moving earth and gravel thereon and in front or near the premises described, at the time and times mentioned in said complaint, he did while he was the duly appointed and qualified street commissioner of said village of Freeville, and in his capacity as such commissioner, and under the authority and direction of the trustees of said village of Freeville, and not otherwise.”

      Almy <& Boxvton, for the appellant.

      Lester D. Mattery and 8. D. Halliday, for the respondent.
   Hardin, P. J.:

Whether tlie defendant was a street commissioner of the village of Freeville at the time of making the excavations, referred to in the pleadings, or not, was made a conspicuous question upon the trial of the issue. The defendant insisted he was de jure commissioner, and he also asked the court to hold that he was de faeto street commissioner. The plaintiff claimed the converse. The court declined to charge that the defendant, in doing the work complained of, was the defacto street commissioner of the village of Freeville, and acted under the lawful direction of the board of trustees of the said village.” Defendant took an exception to the refusal to charge. The court charged: “ That he was not an officer under the law as it stands.”

Upon the trial the clerk of the village was called as a witness, and he identified the books of records, kept by him as such clerk, of the proceedings of the board of trustees of the village of Freeville. The minutes were put in evidence, and from them it appeared that William H. Richardson, Orson Luther, George T. Card and Byron Brewer were elected, respectively, president - and trustees on the 2d day of July, 1887. There was a meeting of the trustees held on the 5th of July, 1887, at the office of President Richardson, when Brewer and Luther were present as trustees, and at that meeting G. M. Watson was unanimously chosen clerk, and the board adjourned to the sixth day of July; and the minutes indicate that Trustees Brewer, Luther and Card, having duly qualified, were present, and President Richardson was in the chair ; after transacting some business the board adjourned to the eleventh of July.

On the 20th of March, 1888, a regular annual election was held, and W. H. Richardson was elected president, and Hill and Grover were elected trustees.

On the 27th of March, 1888, the first meeting of the board of trustees was held in the office of the president, and Hill, Grover and Card were present, and the president was in the chair. By the minutes of that meeting it appears that “ E. F. George was appointed clerk, and William Grover was appointed street commissioner. * # * Motion made and carried that the president and clerk be authorized to give commissioner orders on treasurer for such amount as he needs from time to time.”

April 2, 1888, another regular meeting of the board of trustees was held and the minutes of the preceding meeting were read and approved; and it appears by the minutes kept of the meeting held on April 2, 1888, viz.: “ Motion made and carried that the bonds of N. H. Thompson and "William Grover be accepted.”

Another regular meeting was held on May 7, 1888, and the minutes thereof contained the following entry: .“Minutes of last ■meeting read and approved.”

Defendant offered in evidence a bond executed by him and George M. Watson as surety, which bond was in the penal sum of $400, and the condition of said bond was as follows: “ The condition of this obligation is such that if the above bounden William M. Grover, who has been appointed street commissioner of the above-named village, does faithfully perform the duties of said office withont fraud or delay, then the preceding obligation to be void, otheiwise to remain in full force and virtue.”

The defendant also put in evidence a bill of Grover as street commissioner of the village of Freeville, filed September 11, 1888, which contained items for labor performed and materials furnished during the months of June, July, August and September. The verification of the said account among other things contained the following language, viz.: “ W. M. Grover being duly sworn, says he is street commissioner of the village of Freeville; that the within report of labor performed on the streets of said village is in all respects correct.” * * * The affidavit was subscribed: W. M. Grover, street commissioner,” and sworn to the 11th day of September, 1888, before Edgar F. George, village clerk.

Edgar F., George was called as a witness and, among other things, testified: “ I kept these minutes on this page 39; it simply says ‘William Grover was appointed street commissioner.’ I do not recollect whether it was done by motion or otherwise. * * * I was acting as clerk of. that meeting.”

George T. Card was called as a witness and testified that: “ I have been trustee of the village for two years, beginning in the spring of 1887. The other trustees for 1888 were John S. Grover and O. H. Hill. Only two elected that year. “ Think I was present at the first meeting of the board after the election of 1888. Was present when Mr. Grover was appointed street commissioner. There was a motion made and a vote taken to appoint Mr. Grover, and it was prononneed carried by fcbe president. Think I was present when Mr. Grover’s bond was presented. Can’t positively recollect in regard to the bond; my impression is that it was presented and approved.” Thereupon Edgar F. George was recalled and testified: “ Mr. Grover’s bond as street commissioner was filed with me as clerk of the village, April 2, 1888.”

Thereupon George T. Card was recalled as a witness and testified, viz.: “After the appointment of Mr. Grover as street commissioner, his taking the oath of office and filing his bond, the board of trustees took action in regard to this excavation of the street in front of Mr. Cotanch’s place; can’t recollect the date, but should think it was in May; all the trustees, Hill, Grover and myself, were present; William Grover was present also; what we did in reference to the highways in general was that Mr. Hill took his two-seated democrat wagon and his horse and took the other trustees and myself and William Grover, and started from about the center of the village over the roads to see where there were places that needed repairing, and to instruct the commissioner what to do in different places, and we went down to this place in front of Mr. Cotanch’s house and looked that road over ; there was a knoll there in the road commencing about in front of the church and slowly raising to in front of Mr. Cotanch’s house, and then sloped off toward the railroad to thé west; we were there in the wagon and I can’t remember just the words that each one said to the other; I can remember the general decision of the three as we were together, but can’t remember the exact words ; I told them how I thought the dirt ought to be taken out to improve the road, about how wide and about how long, where to begin and where to end ; we had a tape line and we measured to get the width of the road at that point, and I told them about where I thought it ought to be taken out to make the road better at that point, and that we could use the dirt in filling up in other places; * * * after I had made this statement to the other trustees as to what my judgment of the improvement to be made was, they said they thought that would be an improvement to the road and that we could use the dirt we took out of that place to fill low places or other places in the road, and be a general improvement; we showed Mr. Grover about how deep to take the dirt out and about bow wide; I don’t think we told him just what place to begin; I think we told him how much dirt to take and how deep to take it, and how deep to leave it after it was finished; * * * I saw the work during its progress; Mr. Grover commenced near the corporation line and ploughed on the south side of the road; ploughed quite a little wider than the beaten path, clear to the edge of the bank; there was quite a steep bank on that side, slanting off towards the swamp; * * * after the completion of this work Mr. Grover was paid by the village for his work and the money he had expended there.”

Freeville was incorporated under “An act for the incorporation of villages,” passed April 20, 1870, chapter 291 of the Laws of that year. In title 2, section 1 of the act, it is provided, viz.: “ The officers of a village incorporated under this act shall be as follows, unless otherwise herein directed : A president, three trustees, a ■treasurer, a clerk, a collector and a street commissioner.” Section 3 provides: “ The clerk and street commissioner shall be appointed annually by the board of trustees.” Section 5 provides: “All officers elected or appointed under this act shall hold their respective offices one year, unless sooner removed or disqualified, and until their successors shall be elected or appointed and qualified.” Section 7 provides, viz.: “ Every person elected or appointed to office under this act, who shall neglect to file the oath of office hereinafter required for five days after personal notice, in writing, from the inspectors of election or the village clerk, of his election or appointment, shall be deemed to have declined the office, and his place may be filled as in case of a vacancy.” Section 11 provides that the street commissioner, before entering upon the duties of his office, shall “ execute and file wi+h the village clerk a bond to the village, in such a sum and with such sureties as the board of trustees shall approve.” And section 12 provides for the oath of office.

Subdivision 25 of section 3, title 3 confers upon the trustees power to keep the roads, avenues, streets, lanes, public buildings and public places of the village in good repair, order and condition.”

In title 8, section 13, it is provided as follows: “ The board of trustees shall cause to be kept a record of its proceedings.”

The act nowhere prescribes a commission to be issued to a street commissioner. ¥e are inclined to think that there is no custom in municipalities organized under that statute to issue a formal commission. The action of the board of trustees, evidenced by resolution appointing such subordinate officers, seems to be regarded as sufficient authority for commissioners to act after the oath of office and bond are made and given as prescribed by the act.

Our attention is called to the People on the Relation of Babcock v. Murray (70 N. Y., 521), which is to the effect that an appointment of excise commissioners verbally is not sufficient. That case contains an intimation that the appointment of civil officers may not be made verbally, save where permitted by the terms of the statute conferring the appointing power, and that in the absence of such permission there must be a commission, a formal 'writing signed by the official with whom the power of appointment rests, showing clearly his intention to appoint the person named. We think that case does not sustain the contention of the plaintiff. The evidence in that case disclosed the fact “ that the only action of the mayor was a verbal nomination of the relators to the common council for appointment to the office. The vote of the common council and the record of their action upon the nomination must be laid out of view as ultra vires and without efficiency. They add nothing to the verbal declaration and statement of the mayor, and the claim is that such nomination was a verbal appointment of the persons named to the office, the completed act of the mayor making the appointment; that an appointment by parol, without writing, is a valid exercise of the power to appoint, and this proposition must be sustained or the respondents cannot hold their judgment.” In the course of the opinion delivered in that ease Allen, J., refers to Johnson v. Wilson, 2 N. H., 202), which was a case relating to an elective office, and in deciding that ease, Woodbury, J., says: “ On general principles the choice of a person to fill an office constitutes the essence of his appointment. After the choice, if there be a commission, an oath of office, or any ceremony of inauguration, these are forms which may or may not be necessary to the validity of any acts under the appointment, according as usage and positive statute may or may not render them indispensable.” We think in the case before us the clear evidence of the defendant’s title to the office, and right to administer the same, were made apparent by the resolution adopted by the board of trustees appointing him, by his oath of office and bis bond duly approved by the trustees and filed with the records of the corporation. "We are also of the opinion that the plaintiff cannot successfully question the defendant’s title to the office upon the evidence furnished upon the trial. (Foot v. Stiles, 57 N. Y., 399; Dolan v. Mayor, 68 id., 274; Morrison v. Sayre, 40 Hun, 465.)

(2.) If the removal of the earth in front of the plaintiff’s premises was made for the purpose of improving the street or highway by the village authorities, and for no other purpose, and they acted in good faith in such removal with a view to benefit the public; their action was within their corporate powers; however, if they made such removal for the purpose of obtaining the earth and soil and gravel, and appropriated it to their own use or the use of the corporation in other localities, their action in so doing cannot be justified. In Robert v. Sadler (104 N. Y., 229) the rule is stated as follows : “ Where the public have taken an easement for a street or highway and the surface of the land is above the grade of the highway so that, in order to reach the grade line it is necessary to remove the superincumbent material, this may be used on other portions of the road on the premises of other landowners, but the public easement justifies only the taking of earth and soil which the process of construction or repair requires and necessarily compels to be removed.” That case was followed in Ladd v. French (24 N. Y. St. R., 952), in which latter case it was said : Gravel cannot be dug from between the traveled part of a public highway and the fence of an adjacent owner for the purpose of improving the road at a spot other than that from which it is taken.”

There was a conflict in the evidence, in respect to the purposes in view, in making the removal of earth and gravel. Some of the evidence quite clearly indicates that it was removed from the plaintiff’s premises for the purpose of improving the highway. Some of. the evidence quite clearly indicates that it was removed for the purpose of appropriating the material by the corporation through its officers to the use of other streets. We forbear to express any conclusion upon the weight of the evidence, as the views we have already expressed in respect to the appointment of the street commissioner renders another trial necessary.

We think the ruling of the court at the trial, and the positions taken in the charge upon the requests, and refusal to charge upon the subject of the defendant’s title to the office of street commissioner, were prejudicial to the rights of the defendant. We are, therefore, of the opinion that the judgment and order should be reversed and a new trial ordered.

Maetin and Meewin, JJ., concurred.

Judgment and order of the Tompkins County Court reversed upon the exceptions and a new trial ordered, with costs to abide the event.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN SCRAFFORD, SARAH SCRAFFORD and REUBEN FRASER, v. WHEELER STEDMAN, JAMES HOLMES AND ARTHUR P. BODLE, as Commissioners of Highways of the Town of Owego.

      Irregularities in laying out a highway — when reviewable by certiorari — waiver.

    Upon a return to a writ of certiorari directed to the commissioners of highways of the town of Owego, Tioga county, to review an order laying out a highway in said town, it appeared that one Holder had presented a written iDetition to the • commissioners for the laying out of such highway; that no notice was given by the petitioner to the commissioners of the time and place of drawing the jury, which drawing took place on December 4, 1888, by the town clerk, and that a summons was issued by a justice of the peace, directed to the constable, requiring him to summon the jurors so drawn.
    It also appeared that no notices were posted stating the time and place of the meeting of the jury, nor was any notice given to the owners and occupants of the land through which the proposed road was to be laid out of the meeting of the jury; that the jury met and certified as to the necessity of a road, and thereafter the commissioners made a map laying out a highwayupon a route other than that described in the petition and than that designated by the jury, of which proposed action of the commissioners no notice was given to the owners or occupants of the premises.
    Objection was made to the writ of certiorari, and an application was made that it be quashed for the alleged reason that the relator had the right to appeal from the order of the commissioners of highways laying out the road.

      Held, that the writ of certiora/ri was properly granted, as the proceedings leading up to the order of the commissioners, and the determination evidenced thereby, could not “be adequately reviewed by an appeal to a court or to some other body or officer.”

      That the fact that an attorney appeared upon the drawing of the jurors and made before them an argument against the opening of the road, in the absence of evidence of any authority on his part to represent the owners of the land taken for the highway, did not constitute a waiver of the defects in the proceeding.
    Oeetxoeaei issued under an order of tbe Supreme Court made at a Special Term thereof, held in the county of Chemung, directing that a writ of certiorari issue, directed to Wheeler Stedman and others, commissioners of the town of Owego, New York, commanding them to certify and return the proceedings and decisions described in the matter of the laying out of a road described in the petition in this matter.
    The object of the c&rüora/ri was to review an order made by said commissioners January 14, 1889, laying out a highway in said town on the application of John F. Holden, through the lands owned and occupied by John Scrafford, Sarah Scrafford, Mary A. Scrafford and others. November 24, 1888, John F. Holden presented a written petition to the commissioners of highways of the town of Owego to lay out a highway through the lands of John Scrafford, Sarah Scrafford and others. No notice was given by the petitioner to the commissioners of the time and place of drawing the jury. The jury was drawn on the 4th of December, 1888, by the town clerk, and a summons was issued by a justice of the peace directed to a constable, requiring him to summon the jurors so drawn. It appears, affirmatively, that no notices were posted stating the time and place of the meeting of the jury, nor was any notice given to the owners and occupants of the land through which the proposed road was to be laid out of the meeting of the jury. December 15,1888, the jury met and certified to the necessity of the road. After viewing the premises they refused, however, to sign a certificate that the road was necessary or proper in the place and upon the route mentioned in the petition; but finally, upon certain representations being made to them by thé commissioners to the effect that the road should not be laid out in the place described in the petition, and that the commissioners would lay out the road south-west of the place described in the petition, they signed and delivered their certificate. Thereafter, on January 14, 1889, the commissioners made an order laying out a highway through the lands of John Scrafford, Sarah Scrafford and Mary Scrafford and others, but at a place other than that described in the petition, and other than the place certified and recommended by the jury, and at a point northerly from the place described in the petition. No notice was given to the owners or occupants of the premises of the meeting of the commissioners on January fourteenth, and only two commissioners signed the order. Notice given of the meeting of the commissioners to decide upon the application was given for January 12, 1889. The relators, questioning the jurisdiction of the commissioners, and complaining of the irregularities in their proceedings, applied to a Special Term and obtained a writ of certiorari.

      O. A. <& H A. Olarh, for the relators.

      D. T. Easton, for the commissioners.
   Hardin, P. J.:

Defendants contend that the writ of certiorari should be quashed because the relators had the right to appeal from the order of the commissioners of highways laying out the road. Attention is called to the provisions of section 2122 of the Code of Civil Procedure. That section provides as follows : “ Except as otherwise expressly prescribed by a statute, a writ of certiorari cannot be issued in either of the following cases: * * * Subdivision 2. Where the determination can be adequately reviewed by an appeal to a court or to some other body or officer.” We are of the opinion that the proceedings leading up to the order, and the determination evidenced thereby, cannot be “ adequately reviewed by an appeal to a court or to some other body or officer.” The appeal given to the county judge by section 84 (2 R. S. [7th ed.], 1246), only authorizes a review of the merits involved in the order. (People v. Harris, 63 N. Y., 391.) In the opinion delivered in the case just cited the case of People v. Cline (23 Barb., 197), cited to us by the defendants, was referred to and disapproved. We are of the opinion that the relators have the right to review the proceedings of the commissioners by a writ of certiorari. (People v. Harris, 63 N. Y., 391.)

The case of the People v. Parker (12 N. Y. St. Rep., 448) is an authority for holding that, under a writ of certiorari, the title to the office of assessors may not be inquired into, even under the act of 1880, chapter 269, as to illegal assessments; but nothing in the case aids the contention of the defendants here.

(2.) Section 59 (2 Revised Statutes [Ttb ed.], 1239) requires every person who shall apply for the laying out of a highway through any such land (enclosed, improved or cultivated land), to cause notices in writing to be posted in three of the most public places of the town, specifying, as near as may' be, the route of the proposed highway, and the time and place at which the freeholders will meet to examine the ground. Every such notice shall be posted at least six days before the time specified for the meeting of the freeholders.

Chapter 696 of the Laws of 1881 does not in terms repeal or modify section 59 of the Revised Statutes. The petitioner or applicant for the road gave no notice of the time and place of drawing the jury to the commissioners or to the land owner; nor was any notice posted, as required by section 59, of the time and place of the meeting of the jury. The notices given by the town clerk of the time and place of the meeting of the jury contained no specification, as near as might be, of the route of the aforesaid road; it did not in that respect comply with the requirements of section 59; nor was such notice posted up at least six days before the time specified therein for the meeting of the freeholders. The notices were served by depositing the same in the mail addressed to the land owners at Owego, N. Y., with the exception of one addressed to Eugene Eerguson, at Elemingville, N. Y. The post-office address of some of the land owners is G-askill Corners, Tioga county, N. Y.

Section 62 of the Revised Statutes (page 1241 [7th ed.]), requires the commissioners before they shall determine to lay oiit the highway, after the certificate is made by a jury, to cause notices in writing to be given to the occupant of the land through which the road is to run of the time and place at which they will meet to decide on the application. The notice is to be served three days before the time of meeting.

The affidavit of John E. Holden, made January 18, 1889, states that the service was made of such notice on the 7th of January, 1889, on “ Mary A. ScrafEord, by leaving with Etta Ketta, her daughter, at her residence at Owego, N. Y.” It does not state that Mary A. ScrafEord was absent from her residence. The affidavit does not bring the service within the exceptional provision of section 62.

(3.) The description of the road in the order of the commissioners is quite different from that found in the application made by Holden on the 24th of November, 1888. "While it is not needful to pass upon the power of the commissioners to make such a great departure from the route proposed by the applicant, or from the one stated in the certificate of the jury, it may be observed that such departure seems to be beyond their power. (People ex rel. Wilkinson v. Carmin, 14 N. Y. St. Rep., 543.) Rut it is insisted, on behalf of the defendants, that the irregularities have been waived. The return states that, at the time and place that the jury was drawn, “Martin S. Lynch, Esq., counselor-at-law, appeared and claimed to represent the Scraffords mentioned in said proceeding and on the drawing of such jury, and as the names were drawn made objection to several of the jurors whose names were drawn, such objections being allowed.” The return also states that he “ made an argument before said jury against the necessity of laying out said highway.” There is nothing further in the return or other papers before us to indicate that Mr. Lynch had any authority from the land owners to appear for them or to make any waiver of any of the statutory requirements.

The proceedings to lay out a road must conpply with the requirements of the statute in respect thereto. We think no such waiver or consent was shown as should be held sufficient to confer jurisdiction and to validate the proceedings. (People ex rel. Johnson v. President, etc., Village of Whitney Point (32 Hun, 508; S. C., affirmed, 102 N. Y., 81.)

(4.) It seems that Reuben Eraser did not own any lands directly affected by the proceedings brought under review, and that he has no such interest as would authorize him to sue out a writ of certiorari. (People ex rel. Lawrence v. Schell, 5 Lans., 352.) The writ as to Eraser should be quashed, with ten dollars costs. The order of the commissioners of highways is annulled, with fifty dollars costs and disbursements. (Section 2143 of the Code of Civil Procedure.)

Martin, J., concurred; Merwin, J., concurred in the result.

The writ as to Eraser quashed, with ten dollars costs. The order of the commissioners of highways is annulled, with fifty dollars costs and disbursements. (Section 2143 of the Code of Civil Procedure.)


author: Learned, P. J.:

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    LEMON THOMSON, Appellant, v. JOHN O. POOR and CHARLES C. POOR, Respondents.

      Sale of hark on trees is a sale of realty — a written contract, within the statute of frauds, cannot he changed, before Jrreach, hy an oral agreement — estoppel.
    A sale of bark on growing trees is a sale of an interest in land and a contract therefor must he in writing.
    An oral agreement, purporting to modify a written contract which is within the provisions of the statute of frauds, where the oral agreement simply reduced by one-half the amount of bark which was purchased under the terms of the written contract, and was entered into before any breach of the written contract, is executory and void.
    The question of estoppel does not arise in support of an oral agreement, purporting to modify a written contract which is within the provisions of the statute of frauds, where no adjudication of forfeiture of the original written contract is asked, but it is simply insisted that the party claiming the right to the estoppel should perform the original written contract and have all its benefits.
    Under such circumstances it is not an answer to a claim for performance of the original written contract that such contract was changed by an oral agreement, and as thus modified was performed.
    Appeal by tbe plaintiff from a judgment of tbe Supreme Court, entered in-tbe office of tbe clerk of tbe county of Warren on tbe 28tb day of December, 1889, dismissing the plaintiff’s complaint, with costs; and also from an order denying plaintiff’s motion for a new trial, made upon, the minutes of the court before wbieh the action was tried.
    The action was brought to trial at the Warren County Circuit before the court and a jury, at which a verdict was rendered in favor of the defendants.

      Isaac La/wson, for the appellant.

      D. 8. Potter, for the respondents.
   Learned, P. J.:

This is an appeal from a judgment on a verdict in favor of defendants and from an order denying a new trial.

The complaint sets out at length a sealed contract between plaintiff and defendants, dated April 1, 1885, for the sale to them at a certain price of hemlock bark, on trees of a certain specified size, on a certain lot; the bark to be peeled by them, 1000 cords in each year after the first; the timber to be cut and piled by the plaintiff in the same year in which the bark is peeled.

The complaint charges that in the year 1886, the defendants peeled 935| cords; took a part thereof, but refused to take the remainder, and asks judgment for a certain sum. The answer, with some denials, avers a modification of the contract to the effect that defendants were required to peel only 500 cords instead of 1,000 in that year; that they peeled that amount and paid therefor. On the trial the plaintiff proved the contract. He proved that defendants peeled 500 cords in 1886, and paid therefor; that he directed the same man who had peeled for defendants to peel more; that 4351-cords more were peeled. The plaintiff then rested. The defendants moved for a nonsuit on the ground that the action was not for a breach of the contract, but for not paying for a part of the bark which defendants had peeled. The nonsuit was refused.

It seems to us that the complaint is not well framed to set forth the real matter in issue. But considering that the real controversy appears in the answer, and that the complaint might be easily amended to suit the evidence, we think it better to pass to the important question between the parties. It will be seen that the plaintiff was the owner of the lot in question, and that he was engaged in lumbering from the lot. It was the bark only which he sold, to defendants. This bark should be removed before the trees were felled for lumbering The same man, Wakeley, seems to have been employed at both kinds of work on the lot — peeling the bark and felling the lumber. Wakeley had a contract with plaintiff, dated August 3, 1885, to fell the trees, which work was to be done “ in such manner as to comply with the agreement for peeling and selling the hemlock bark.”

The bark contracted for by defendants was to be used in their tannery. This tannery burned down July 6, 1885. After this their agent, Wait, called on plaintiff in November, 1885, and had a conversation with him. The versions given by Wait and by the plaintiff differ. The jury having found for defendants, they are entitled to have the version of Wait taken as correct. The important part is that, after mentioning the fire, Wait said that defendants had to get the contract reduced, if possible, in order to sell the bark to other parties ; that Wakeley was there as a jobber and needed something to do; that if they could reduce the amount to 500 cords they could make arrangements; that plaintiff said any arrangement they could make with Wakeley would be satisfactory to him. There' were two conversations, but this was the substance. Wait knew that Wakeley had the job from plaintiff to take off the logs.

The plaintiff insists that this alleged verbal agreement was inadmissible to alter the terms of the sealed agreement between the parties. That is the important question.

It should be noticed, however, that the plaintiff explains the conversation thus: That he said he would be willing to accommodate defendants in any way he could, but the only embarrassment he had was the contract he had with Wakeley; that if they could make it satisfactory to Wakeley, he would do what defendants wished; that is, that the plaintiff would consent to reduce the number of cords to be peeled annually, if defendants could induce Wakeley to modify in a corresponding manner his contract of August 3, 1885, for felling the trees.

The defendants afterwards, on February 26, 1886, made a contract with Wakeley to peel 500 cords each year, or more if they elected, to the amount of 1,000 cords each year. As by the terms of the written contract the defendants were to peel 1,000 cords each year, it is plain that their agreement with Wakeley to peel 500, or more if they elected, np to 1,000, was not any greater or other act than they were obliged to do by the original contract. Therefore, their agreement with Wakeley gave no greater validity to the alleged verbal agreement between the plaintiff and "Wait than it would have had if the plaintiff, at Wait’s request, had agreed to reduce the annual amount to 500 cords. No new obligations were undertaken or acts done by defendants in consequence of the verbal agreement which they would not have had to undertake and do under the written contract.

In regard to the verbal modification it will be seen that, if valid, it doubled the time within which the sealed contract was to be performed, and within which defendants had the right to enter the lot; and, as the sale was of bark on trees of a definite size, the growth of the trees might bring into the sale the bark on other trees than those included in the original contract. It does not seem to be disputed that a sale of bark on growing trees is a sale of an interest in land and must be in writing. (Green v. Armstrong, 1 Denio, 550, 556.)

“ The better opinion,” say the court, in Swain v. Seamens (76 U. S., 254, 272), “ is that a written contract falling within the statute of frauds cannot be varied by any subsequent agreement of the parties, unless such new agreement is also in writing.” (See Emerson v. Slater, 63 U. S. [22 How.] 28, 42.)

There are cases, like Homer v. Guardian Mutual Life Insurance Company (61 N. Y., 481), where one party, by agreeing to extend the time for a payment, has induced the other to neglect payment at the appointed day, and it has been held that the former could not take advantage of the neglect. But such cases are not like the present.

So, also, there are cases like Dodge v. Crandall (30 N. Y., 306), where, for a valuable consideration paid by the debtor, a person buys a mortgage already payable and agrees to extend the time of payment. Such cases are not like the present. The contract was between new parties, and the original contract had been broken. But it was said in the case last cited that, before any breach, and when the subsequent agreement is executory, it requires a writing of equal solemnity to effect a change in a contract under seal, So it was held in Eddy v. Graves (23 Wend., 84), referring to Allen v. Jaquish (21 id., 628) (See, also, Chitty on Cont. [11th Am. ed.], vol. 1, p. 155; Addison on Cont. [8th ed.], vol. 2, p. 894.)

The alleged change in the contract in the present case was very material; was executory; was before any breach of the contract had arisen; was verbal and purported.to affect a writing which, unless in writing, would have been void. It, therefore, came most strikingly within the prohibition. And we may well inquire, if the original contract must have been in writing in order to be valid, by what logic can a material change, executory in character, be made verbally ? To permit such a change thus to be made is to violate directly the statute of frauds. If A contracts in writing to sell B black acre, may B prove a subsequent verbal agreement modifying the contract so that A is made to contract to sell white acre also ? Or, to make the case more analogous to the present, may B prove a subsequent verbal agreement that he is to buy only half of black acre ?

The very evil at which the statute was aimed appears in this case. The parties disagree as to the alleged verbal agreement. And in place of a written contract, clearly expressing their meaning, we are left to the conflict between conflicting recollections of a brief conversation.

The defendants also insist on the doctrine of estoppel. Now, if the plaintiff were asserting that the defendants had forfeited all their rights under the contract for some failure to perform, and they could show that some act of the plaintiff had induced them to neglect performance, then there would be a place for the doctrine of estoppel. But the plaintiff asks no forfeiture of the contract. He insists that the defendants should perform it and should have all its benefits. They say the contract was changed by verbal agreement and we performed the contract as changed. That is, instead of performing the contract to its full extent, they performed it only half way. There is no estoppel here. Peeling half as much bark as they agreed does not prevent them from peeling and taking the whole. The defendants also urged that a party may waive a condition. (Pechner v. Phœnix Ins. Co., 65 N. Y., 195.) As, for instance, that notice of other insurance given to an insurance company may operate as a waiver by them of the statement of such other insurance in the policy. That is, the company shall not insist that the policy is void for failure to comply with a condition which they have waived. But, as pointed out before, the plaintiff does not claim that this contract is void. He insists on its validity.

¥e think the judgment and order should be reversed and a new trial granted, costs to abide the event.

LaNdoN and Mayham, JJ.', concurred.

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


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    GEORGE O. SIMONDS, Appellant, v. SOUDIE M. SIMONDS, RESPONDENT.

      Alimony in an action for divorce — second application therefor without any change of circumstances, improper.

    In an action ior divorce on the ground of adultery, in which, an application has been made for an allowance of alimony and denied, it is improper to mate a second application for such allowance where no change of circumstances has arisen since the decision of the first motion.
    Appeal by the plaintiff George O.'Simonds from an order, entered in the office of the clerk of the county of "Washington on the 5th day ■of March, 1890, granting the application of the defendant for alimony and counsel fees, after a hearing at a Special Term held at Fonda, Montgomery county, on the 25th day of February, 1890.

      John 8. Warren, for the appellant.

      Edgar Hull, for the respondent.
   Learned, P. J.:

This is an action for divorce on the ground of adultery. The defendant denies the adultery and also alleges adultery on plaintiff’s part. The defendant made a motion, December 3,1889, for alimony and counsel fees. The motion was denied, with leave to renew. The learned justice (Judge Putnam) wrote an opinion explaining his reasons.

In pursuance of such leave the defendant made a second motion of the same kind before the same justice, January 7,1890. Numerous affidavits were used on each side. The learned justice wrote another opinion. He denied the motion for alimony, but granted the allowance of $150 for defendant’s expenses in conducting the action and her defense. Thereupon, the defendant gave notice February 13, 1890, for another motion to be heard the twenty-fifth of February, to require plaintiff to pay her fifteen dollars per week for support of herself and her child, and for an additional sum of $250 to procure evidence and witnesses and counsel in the action. That motion was heard before Justice Fish. Numerous affidavits were again read on each side. The learned justice in his opinion states that the sum of $150, theretofore allowed, will fall short of the necessities of the case. An order was made that plaintiff pay an additional sum of $250 for counsel, and for the failure so to do that his complaint be struck out; that he also pay $100 in thirty days for the support of defendant’s child and twenty -five dollars per month thereafter. And the question of the allowance of alimony was reserved for further consideration.

It is evident that no change of circumstances had arisen, since the decision of the second motion, which materially affected the rights of the parties. This third motion was practically an appeal from the decision of Justice PutNAM. He had determined the amount deemed necessary for counsel fee and expenses, and he had denied the motion for alimony. His order, though dated the seventh, was entered the twentieth of January. It was not proper, therefore, for the defendant, in the short time of two weeks thereafter, to renew this motion, at least without showing that some new circumstances had arisen.

The place of trial is in Washington county. The first and second motions were made in Saratoga; the third in Fonda. It would seem as if the defendant was unwilling to renew her application before the same justice who had heard the first and second motions. The reason given in defendant’s affidavit on this last motion why she renews it is that, as alleged, the plaintiff’s affidavit used on the second application is so full of falsehood that she believes the court was misled. That alleged falsity must have been known on the hearing of the second application. The defendant could then have asked leave to have the motion stand over, that she might serve other affidavits, and that request would undoubtedly have been granted. But she proceeded with her motion and she retains the benefit of the allowance then granted, and by this third motion seeks to increase it. Of course, when circumstances change, it may be proper for the court to make new orders in respect to alimony and allowances. But this rule does not imply that the party dissatisfied with the discretion exercised by one judge may apply to another to exercise his discretion on what are substantially the same circumstances ; as a buyer might go to another shop to get for the same money an article which he liked better.

"We have examined the affidavits used on all of these motions. They are contradictory, and evidently some of them are false. It is not best for us to comment on them. It is enough to say that the right in the court to make and modify from time to time such orders as these (Code, 1769) does not justify the defendant in the-practice followed in this case. The order of Justice Putnam had denied the matter both as to allowances and as to alimony. The-defendant could have reviewed it on appeal. But an appeal does not lie to another Special Term. If it did, the plaintiff might now move before Justice Putnam to reduce the allowance and alimony granted by Justice Pish. •

The order should be reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.

Landon and Matham, JJ., concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


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    MAGGIE TYRRELL, Respondent, v. JAMES YORK, Appellant.

      Gift from husband to wife — evidence of delivery, different in the case of personal ornaments, and in the case of furniture — consideration, promise to live with a man.

    While slight evidence of a gift from a husband to a wife may be sufficient in a case of a wife’s personal ornaments, on the other hand, as to such things as furniture which are in common use in the family, a gift must be shown by delivery to the wife and possession by her.
    The ordinary use thereof in the family is not sufficient to establish her possession thereof.
    The promise of a woman to continue to live and cohabit with a man, not her husband, forms no valid consideration for a contract made on his part with her.

      Appeal by the defendant from a judgment of the Albany County Court, in favor of the plaintiff, entered in the office of the clerk of Albany county on the 24th day of September, 1889, with notice of an intention to bring up for review upon such appeal the order denying the defendant’s motion to set aside the verdict of the jury and for a new trial.
    The case was brought into the Albany County Court, on an appeal from a judgment of the Justice’s Court of the town of "Watervliet, Albany county, N. Y., where the plaintiff recovered $200 damages and five dollars and forty cents costs. The trial in the County Court resulted in a verdict for the plaintiff for the sum of $200 and costs.
    Andrew Hamilton, for the appellant.

      James H. Sycm, for the respondent.
   Learned, P. J.:

This action was brought in a Justice’s Court to recover damages for taking goods and chattels. The plaintiff recovered and the defendant appealed. On a new trial in the County Court the plaintiff again recovered and the defendant appealed.

The plaintiff claims to have been the owner of this property {household furniture) when it was taken by defendant. The defendant avers that on the 14th of January, 1888, John Tyrrell, then the owner, mortgaged the property to defendant, and that, by virtue of the mortgage, defendant took and sold the property February 29, 1888.

Tyrrell bought the property of defendant in December, 1886, and took it to his house where he and plaintiff were living as husband and wife. They had been married (at least formally) in September, 1886. On February 20, 1888, Tyrrell went away from plaintiff. She claims that, in January, 1887, and again in July, 1887, Tyrrell gave her this property. Of course, the material question is as to her title. If she owned the property, Tyrrell could not give a valid mortgage on it. If she did not own it, then it is immaterial whether the mortgage was for more or less than Tyrrell owed York. Her title must depend on the alleged gift by Tyrrell to her. Because it is plain that, before such alleged gift, the property was Tyrrell’s.

She says Tyrrell secured a house in December, 1886, and put the furniture in it; that, he gave it to her the first week in January, 1887; that she had him arrested in July, 1887, when he had been drinking, and she also commenced an action for divorce against him; that he then took the pledge and agreed, if she would return and live with him, that all the furniture should be hers, and that she returned and lived with him till he went away. This last arrangement is also testified to by the police justice before whom Tyrrell was brought.

The defendant insists that there was not sufficient proof of-a gift to go to the jury, and not sufficient delivery of possession to go to the jury as showing a completed gift.

The doctrine applicable to this case is shown in Armitage v. Mace (96 N. Y., 538), where, on slight evidence of the gift by a husband to his wife of a mare, it was held that there was enough to show “ all the possession that a wife living with her husband could have; and the law is further shown in Whiton v. Snyder (88 N. Y., 299). There, after speaking of personal ornaments, etc., the court says: “As to * * * furniture * * * adapted to the use of and used by the family generally, and in their common possession, a different rule must apply, * * * the difficulty of establishing an executed gift by showing a delivery or a separate and personal possession, remains.” That is, that, while slight evidence of gift may suffice as to a wife’s personal ornaments, on the other hand, as to such things as furniture, which are in common use in the family, an executed gift must be shown by delivery to the wife and possession by her. The ordinary use in the family does not show her possession.

It is plain that there was no proof of an executed gift in January, 1887; nor was there any such change of possession as would make an executed gift out of the transaction of July, 1887; but it might be said that there was then a contract by plaintiff to return and live with' Tyrrell after, by his conduct, he had forfeited all right to her society. In answer to this the defendant says, that if she was not the lawful wife of Tyrrell, then the contract was for future illicit intercourse and was void.

The plaintiff says she had lived in "West Troy thirty-four years; had known Tyrrell a great many years by sight; had known of his wife and family, and that Tyrrell told plaintiff he was not a widower. It is undisputed that Tyrrell and his wife lived in West Troy thirty years and had nine children born there; and that four or five years before the trial Tyrrell and his wife separated. She went to North Adams, where she was living at the time of the trial, and he remained in West Troy. Tyrrell and plaintiff went to New Jersey; were there two hours; were married and returned to West Troy; she says she did not feel like getting married in West Troy; that Tyrrell thought it would be more binding to be married in New Jersey..

We have, then, the fact that plaintiff knew that Tyrrell had been a married man for many years and knew he had children and that his wife was living. There is no evidence that he had been divorced or that plaintiff had any reason to suppose that he had been divorced. These facts, together with the circumstance that she and Tyrrell went to another State merely to have the marriage ceremony performed without any explanation, show that the relationship between them, though under the pretense of marriage, must have been known to her to be illegal. Her promise to continue therein could, therefore, afford no valid consideration for a contract on his part. Indeed, the learned court thus charged with the qualification if she knew the fact of Tyrrell’s marriage. We think that there is no contradictory evidence on that point.

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

Landon and Mayham, JJ., concurred.

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


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    WARREN D. FISHER, Respondent, v. THE VILLAGE OF CAMBRIDGE, Appellant.

      Accident upon a bridge — to one driving upon the sidewalk thereof — dunnages rn'enot recoverable therefor.

    A party wlio intentionally drives upon the side of a bridge where a walk has been constructed for foot passengers, and is injured in consequence of the bridge giving way, cannot recover the damages resulting to him from the accident. ÍTeither the acquiescence by the public authorities in the use of the sidewalk on the bridge by vehicles, nor the fact that there is little to distinguish the carriageway of the bridge from the sidewalk thereof, justify the use of the sidewalk nor will it sustain a claim for damages based upon the accident resulting from such use.

      Jeiohurst v. Syracuse (108 N. Y.; 303) distinguished.
    Appeal by tbe defendant from a judgment of tlie Supreme Court, entered in the office of the clerk of the county of Washington on the lltli day of February, 1889, in favor of the plaintiff, after a trial at the Washington County Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $1,500.

      D. M. Westfall, for the ajtpellaut.

      Charles M. Davison, for the respondent.
   Learned, P. J.:

This is an appeal from a judgment on a verdict in favor of plaintiff and from an order denying a new trial. The action is to recover damages for injury occasioned by breaking through a bridge on which plaintiff drove with a team.

Main street is one of the principal streets in the village. It is crossed or intersected, about at right angles, by a creek or stream eighteen to twenty feet wide. Prior to the incorporation of the village, a highway bridge, having a span of about twenty feet, crossed this stream; a wooden bridge about twenty-eight feet wide. Pedestrians crossed the stream on this bridge. Soon after the passage of the charter defendant constructed' on each side of this highway bridge another bridge on nearly the same level, extending from this highway bridge to the center line of the street. Each of these bridges had about the same span with the highway bridge, and each was about twelve or thirteen feet wide. The highway bridge and these two side bridges thus covered the whole width of the street. There was no very distinct demarkation between them, except, that the south bridge was some three inches below the highway bridge. It seems to be conceded that it was not the duty of the defendant to keep in repair the highway bridge, while it was its duty to keep in repair these side bridges. These were in a line with and formed a part of the continuous sidewalks on the sides of the street.

On the south side of the street is the Eldredge store, adjoining the stream on the east, with a platform in front coming about to the south line of the street. In front of the store is a stone-flagged walk five feet wide and about three feet from the platform of the store. Some three feet beyond the walk is a gutter in the earth, which continues along to the stream. The south line of the sidewalk bridge above described, is about in a line with the south line of the flagged walk, and its north line is about in a line with the south line of the gutter, so that the sidewalk bridge is of about the width ■of the flagged walk, the gutter and the intermediate space of three feet. "Where the gutter comes to the bridge, there is what may be called a sluiceway by which the water running in the gutter pours under the sidewalk bridge into the stream below. Eldredge’s store is about thirty feet in front. Two hitching posts, about seventeen feet apart, stand between the flagged walk and the gutter. The western is about thirteen feet from the east end of the bridge.

The plaintiff, with a team of horses and a truck wagon, drove from the east, coming upon the sidewalk where an alley adjoining Eldredge’s store meets the street. He drove upon the sidewalk in front of Eldredge’s store, so that his nigh-horse was south of the flagging, and his team and wagon were parallel with the store. He then put a stove on his wagon and drove west. He continued along the sidewalk, inside of the west hitching post, and thus upon the south sidewalk bridge. As he was going then diagonally, so as to pass from the sidewalk bridge to the middle of the street, the sidewalk bridge gave way ; the hind wheels of the wagon were left on the abutment of the bridge; the forward wheels went into the creek; his horses’ hind feet went down; the off-horse having one of his fore feet on the highway bridge. The plaintiff was thus injured.

There is evidence enough to go to the jury on the question of the defective condition of the bridge*, if considered as a bridge intended to support the weight of teams of horses and loaded wagons. It is not shown that the bridge was insufficient for foot’ passengers. It is proved that plaintiff knew that this sidewalk-bridge was the place where foot passengers crossed and that it was. built for them.

The principal question in this case must be whether the plaintiff was justified in driving his team across this sidewalk bridge, and. whether the accident was not caused by his own negligence in. going where it was improper to go. And, in close connection with this, whether it was negligent for defendant not to build this sidewalk bridge so that it would be strong enough for teams and wagons.

It must be noticed that the evidence shows that even after the-plaintiff had driven upon the sidewalk lengthwise in front of Eldredge’s store (instead of backing the end of the wagon up to the-platform), he might, by backing sufficiently into the alley have gone out between the hitching posts. Of course, it was more convenient, to drive right along upon the sidewalk. But no reason is shown why all trouble could not have been avoided in the first place by backing the wagon between the posts up to the platform of the store. Obviously, the difficulty in which plaintiff found himself was owing to the manner in which he had chosen to approach the store;. a place with which he was entirely familiar. And after he had loaded his wagon, instead of getting off from the sidewalk at once,, he chose to continue to drive thereon for his own convenience.

It is said by the plaintiff that there was very little to distinguish the highway bridge from the sidewalk bridge. Now, if the plaintiff' had been driving along the street where wagons belong, and if on coming to the highway bridge he had been deceived as to its boundary, and by driving too far on the south side had gone over on the part called the sidewalk bridge, then there would have been ground for the argument that there was no demarkation between them, and that he had been misled and had mistakenly driven on the sidewalk bridge. But this plaintiff is not in that position. Helen ew he was on the sidewalk when he was in front of Eldredge’s.. He knew that the part of the bridge before him was a continuation of that sidewalk. With this knowledge he drove directly forward and upon it. It was of no consequence to him where the exact line-was between the two. It was enough that he knew he was driving upon a bridge evidently intended for foot passengers. Whether he knew where the highway bridge began or did not would be a matter quite immaterial. For he had knowingly driven on the part which was not the highway bridge. Such cases as Jewhurst v. Syracuse (108 N. Y., 303), cited by plaintiff, are just the reverse of this. There the injured party, intending to go on the proper part of the-highway, was misled by appearances and got beyond the true boundaries. It was said that the situation was such as to induce the-belief in one, passing along and exercising reasonable care, that he was within the line ; and, therefore, he might recover, although the defective place was beyond the line. No such case is here.

There is evidence that, in many instances, teams driving from the west were fastened to the west hitching post, and that when so-fastened the off-wheels of the wagons would be on what is called the south sidewalk bridge and the off-horses generally in the gutter. It is evident, therefore, that in these eases only a part of the weight, of the wagon and the weight of one horse only would be on the-, sidewalk bridge. It appears also that draymen like the plaintiff, driving westward from Eldredge’s store, did sometimes take the same course which plaintiff took, driving along the sidewalk and on the sidewalk bridge, and so to the middle of the street. The plaintiff urges that he had seen this done and had done it himself, and that, defendant and its officers had acquiesced. Hence he claims that he-was justified in the manner he drove,- because he was led thus to drive by the appearances. But it was pointed out in Cusick v. Adams (115 N. Y., 55), that it was not a question of appearances,, but a question what duty the defendant owed to the plaintiff. So, also, in Splittorf v. State (108 N. Y., 206). He certainly was not,, and could not have been, misled into a belief that this sidewalk and this sidewalk bridge were places where the authorities designed that, teams should drive.

Of course, in cities and villages, teams may temporarily obstruct, sidewalks. ( Welsh v. Wilson, 101 N. Y., 254.) This is a necessity. And possibly they may do this in the manner in which plaintiff’ acted when he drove the side of his team and wagon up by Eldredge’s store, instead of backing in. If he had done only this, he would not have been injured. But we are not willing to say that, even in. •that act, the person who thus drives does not take the risk of the •condition of the sidewalk. It may well be doubted whether municipal authorities are bound to keep sidewalks in such order that teams and wagons can safely drive upon them. In the ease last cited the obstruction was caused by skids, not by driving a wagon upon the sidewalk.

The Penal Code, section 652, makes it a misdemeanor, willfully •and without authority, to drive “ along upon ” a sidewalk. The by-laws of defendant establish a penalty for the offense. The learned justice charged that, if plaintiff was willfully driving on the sidewalk, and the injury came from that, the action would be barred. But he charged that the public had been allowed to use the sidewalk in a way that plaintiff might have supposed he had a right to go there. If so, that he would not be willfully violating the statute. We think that was incorrect. “Willfully ” is in opposition to “ accidentally” or “ignorantly.” The plaintiff knew that this was a sidewalk, and he drove thereon intentionally. The fact that he had .seen others violate the law could be no excuse.

It is said in Cordell v. New York Central and Hudson River Railroad Company (64 N. Y., 538) that disobedience of a statute is legal negligence. (See, also, Hayes v. M. C. R. R. Co., 111 U. S., 240, and cases cited; Lambert v. Staten Lsland R. R. Co., 70 N. Y., 104; Salisbury v. Herchenroder, 106 Mass., 458; Van Norden v. Robinson, 45 Hun, 513.)

We are not willing to assert that the violation of this law and ordinance would be in all cases a bar to a recovery. That may “ depend on the purview of the legislature in the particular statute and on the language which they have there employed.” (Atkinson v. Newcastle Water-Works Co., L. R., 2 Ex. Div., 441.) Yet the law and the ordinance constituted a notice to him that the sidewalk was a place where the defendant did not authorize him to travel. It was a place where, if he drove his team, they did not owe the ■duty of giving him a safe road. And though others had traveled there, as in the case of Cusick v. Adams, the duty of the defendant was not thereby enlarged. For the place was plainly and unquestionably a sidewalk. However many times plaintiff had seen •other draymen, in going from Eldredge’s, violate both the statute .and the ordinance, he would not hereby be justified in his violation. As before remarked, the omission of the defendant to prosecute for violations, or its supposed acquiescence in former acts, could be. material only when it misled the plaintiff so that he did not know that the place where he was driving was a sidewalk. And no such mistake was, under the circumstances, possible.

It is evident, also, that the question whether defendant was negligent must depend on similar considerations. The defendant had built a bridge strong enough for foot passengers, but not, as it. appeared, strong enough for teams, though teams had been on it before. There had been used in its construction some partly decayed timbers, so that there was evidence for the jury as to the-sufficiency of construction. But, obviously, no question could exist on this point unless the plaintiff was in some way authorized to believe that this sidewalk bridge was a place intended for teams so that the question of defendant’s negligence could only be submitted to the jury if it should appear that plaintiff was justified in going upon this sidewalk bridge. It seems apparent from the testimony, also, that the part of the sidewalk bridge which fell was that, nearest to the highway bridge where the defective timbers had been used. Inasmuch, however, as the plaintiff came on that part not. from the highway bridge, but from the south part of the sidewalk bridge, that fact does not seem to be material on the question of defendant’s negligence.

In the view we have taken we have not deemed it necessary to consider objections to evidence, or particular exceptions to the-charge.

Judgment and order should be reversed and new trial granted,, costs to abide event.

.Landon and Mayham, JJ., concurred.

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