author: Hardin, P. J.: Martin, J.

text:
    George S. Tillinghast, as County Treasurer of the County of Madison, Respondent, v. J. Herman Merrill, Supervisor of the Town of Stockbridge, and Others, Appellants.

      Bond given under chapter 555 of the Laws of 1864 — a deposit of school moneys with bankers who subsequently fail is no defense to an action'for their non-payment.

    The fact that the supervisor of a town in good faith deposited as a general deposit the school moneys received by him with a reputable firm of individual bankers', believed to be solvent, and that thereafter such firm failed and such moneys were lost, is not a defense to an action brought upon the bond of such supervisor given pursuant to the provisions of chapter 555 of the Laws of 1864. (Martin, J., dissenting.)
    Appeal by the defendants, J. Herman Merrill, supervisor of the town of Stockbridge, and others, from a judgment of 'the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 10th day of July, 1893, upon the decision of the court rendered after a trial at the Madison Circuit.

      Henry JP. Ooma/n, for the appellants.

      John J£. Smith and Joseph Mason, for the respondent.
   Hardin, P. J.:

Tinder chapter 555 of the Laws of 1864 it is made the duty of the school commissioners in each county to apportion the public money and prepare a certificate thereof to be delivered to the supervisor, and to deposit a copy in the office of the respective town clerks, and section 30 of the act provides that the moneys so apportioned to the towns shall be paid to the respective supervisors immediately upon their compliance with the requirements of section 31, title 3, article 3 of the act. Section 31 provides as follows: “ Immediately on receiving the commissioners’ certificate of apportionment, the county treasurer shall require of each supervisor, and each supervisor shall give to the treasurer in behalf of the town, his bond with two or more sufficient sureties approved by the treasurer, in the penalty of at least •double the amount of the school moneys set apart or apportioned to the town, and of any such moneys unaccounted for by his predecessor, conditioned for the faithful disbursement, safe-heegoing cmcl uccou/nting for such moneys, and of all other school moneys that may come into his hands from any other source. If the condition shall be broken, the county treasurer shall sue the bond in his own name, in behalf of the town, and the money recovered shall be paid over to the successor *' * * having first given security as aforesaid.” It is provided in section 32 that the “ refusal of a supervisor to give such security shall be a misdemeanor; * * * ” In section 3 of title 4 of the act it is provided as follows: “ A supervisor who shall embezzle or apply to his own private use any money or security received by him under any provision of this act, including the two preceding sections of this title, shall be guilty of a misdemeanor; * * * ” Pursuant to such legislation the appellant Merrill, as principal, and the other appellants, as sureties, executed and delivered the bond prescribed by statute, which contained the following condition, to wit: “That if the above-bounden J. Herman Merrill, supervisor, shall safely keep, faithfully disburse and justly account for all the school moneys which have or shall come into his, hands, apportioned and paid from the State treasury, and all other school moneys that have or may come into his hands from any other source, then this obligation to be void, otherwise to remain in full force and virtue.” Upon that bond this action is brought, and the complaint alleges a breach of the condition of the bond in that the supervisor neglected and failed to safely keep or faithfully disburse and account for the school moneys placed in his hands, and that he was delinquent in the sum of $951.30; and that he had neglected and refused to faithfully disburse or account for that sum according to the tenon of his bond. The answer interposed in this case alleges that the school moneys, after their receipt by the supervisor, were by him deposited in the banking house of E. C. Stark & Co. (individual bankers) in the village of Oneida, to his credit as supervisor •of the town of Stockbridge, and that at the time of the deposit thereof in March the said E. C. Stark & Go. were in good credit and by tbe supervisor believed to be solvent, having a reputation of being a solvent and prosperous company. It is further alleged that on the 14th day of July, while the sum of $951.30 was so deposited in said banking house, Stark & Go. failed and made a 'general assignment for the benefit of their creditors, whereby the said money was lost without any fault or negligence on the part of, the .said supervisor. The answer also alleged that he acted in good faith, without any negligence, in making such deposit. From the findings made by the trial court it appears that orders were drawn upon the supervisor by the trustees of the school districts of the town directing him to pay and disburse out of the school moneys in his hands applicable to the payment of teachers’ wages, several sums specified in said orders, and that the supervisor neglected and refused to pay said orders upon the same being presented to him, and neglected and refused to disburse the school moneys in his hands applicable to the payment of teachers’ wages, and to disburse the library money upon written orders of a majority of the trustees of school districts of the said town, and that payment of the same was duly demanded of the defendant Merrill, and that he declined and refused to pay the same upon the grounds that he had no money applicable to their payment; that such orders were presented to said Merrill after the failure of the banking house of E. O. Stark & Co.” It is also found that he deposited the moneys paid to him to his ■credit as supervisor of the town of Stockbridge in the bank or banking house of E. C. Stark & Co., in the village of Oneida, Madison ■county, N. Y., which bank or banking house was- composed of E. C. Stark and R. M. Bingham, who were then engaged in carrying on an unincorporated private bank at said village of Oneida; that at the time when said deposits were made the said E. O. Stark & Co. were solvent; that at the time when said deposits were made and down to the time of their failure and assignment the said E. 0. Stark & Co. were doing a general banking business usual to private banks, but were not incorporated either under National or State laws.” It is also found that “ E. C. Stark & Co. were in good standing and credit and doing a large and apparently prosperous business, and had a large number of regular depositors and a large amount of money constantly on deposit in their said bank, and many good business men of the village of Oneida and of said town of Stockbridge were depositors in said bank at tíre time when said deposit was made and at the time of their failure; that at the time when said deposits were made the village of Oneida was the most convenient and accessible place for the defendant Merrill to do banking business.” It is -also, found “ that in making such deposits of said money in said bank of E. 0. Stark & Oo. the defendant Merrill acted in good faith;” also,. “ that in making such deposits of said moneys in the said bank of E. 0. Stark & Co. the defendant Merrill was not negligent, and was-not guilty of any personal negligence as to said moneys or the care and management thereof, or as .to his said office and the performance of the duties thereof.” It also appears that when the said deposits were made, and for several years prior thereto, there were-in the village 'of Oneida two National banks incorporated under the-United States Banking Law, and a savings bank incorporated under the laws of the State of New Tork, which were solvent and in good standing and credit. It is also found that at the time when the said deposits were made with E. 0. Stark & Oo. they were and for a long time “ had been in the habit of receiving special deposits of funds, moneys and valuable papers for safe-keeping.” It is further found “ that on the 14th day of July, 1891, the said E. 0. Stark & Co. failed and made a general assignment for the benefit of their creditors; that at the time of their failure and of the making of said, assignment by them there was thus on deposit with the said E. 0. Stark & Co. the sum of $951.30 of the said school moneys, which the said defendant Merrill had thus deposited with the said E. 0. Stark & Co.; that by reason of the said, assignment and insolvency of E. 0. Stark & Go. the said sum of $951.30 became lost. That the defendants claim that, by reason of the said assignment and insolvency of the said E. C. Stark & Co., the said sum of $951.30 has become lost. That, the said assignment is still in force and said assignee has not had any settlement of his accounts, and down to the time of the commencement of this action had not made any distribution of the* assets among the creditors.” It is found as a conclusion of law that, the supervisor “ became .the debtor of the town in the said sum of $2,150.95, thus received by him. That he became absolutely responsible for these moneys, as the debtor of the town, and that it is no defense that the moneys were lost without any fault, want of care or omission of duty on his part.” It is also found as a matter of law, viz.: “ That the loss of the said sum of $951.30 of the said school moneys thus received by the said defendant Merrill, by reason of the insolvency of E. C. Stark & Co., with whom the defendant Merrill deposited the same, as a general deposit, is no defense to this action.” Also, “that this money was within his control, placed there by force of the statute, and if he saw fit to intrust it to the care of these insolvent bankers, he did so at his peril. And it was a breach of his bond, which required him to safely keep it and disburse it.” Also, “ that said moneys so deposited in said bank of E. C. Stark & Co. were lost without any personal fault or negligence of the defendant Merrill,” and a judgment was ordered for the sum of $951.30 and interest from the commencement of the action in favor of the plaintiff and against the defendants. At the instance of the defendants the court found “ that there was duly presented to the defendant Merrill, as such supervisor (after the failure of E. C. Stark & Co.), orders in due form as required by law, drawn by trustees of school districts of said town of Stock-bridge, in favor of qualified teachers, upon said Merrill, as supervisor, to the amount of $200, and payment .of the same was duly demanded of the defendant Merrill; and he declined and refused to pay the same, upon the ground that he had no money applicable to their payment.” It was also found at the instance of the defendants “ that in making such deposit of said money the defendant Merrill acted in good faith.” It was also found that “Stark & Co. were and for a long time had been in the habit of receiving special deposits of funds, moneys and valuable papers for safe-keeping.” Defendants took exceptions to the findings of fact and conclusions of law made and to several refusals to find in accordance with the requests made by the defendants. Considering the evidence in connection with the allegations of the pleadings upon the subject of the moneys, we are of the opinion that the trial court was warranted in finding that -there was a breach of the bond of the defendants before the commencement of this action, and that the defendants had failed to comply with the terms of the bond executed by them. (Supervisors v. Van Campen, 3 Wend. 49; Supervisors v. Bristol, 99 N. Y. 317; State v. Nevin, 19 Nev. 162.) In accordance with section 31 of the school law requiring the bond to be “ conditioned for the faithful disbursement, safe-lceeping and accounting for such moneys, and of all other school moneys that may come into his hands from any other source, ” it became the duty of the supervisor to honor the orders that were drawn upon him by the trustees, which duty he failed to perform in declining to accept and pay the orders drawn in pursuance of the provisions of the statute.

This brings us to the consideration of the principal question involved in this case, which arises in connection with the fact alleged and proved and found, to wit, that after the execution of the bond, and after receiving the public moneys, instead of keeping the same on hand in the actual, personal possession of the supervisor, instead of keeping them in specie, and instead of making a special deposit in incorporated banks or in the banking house of Stark & Co., he made a general deposit of the moneys with Stark & Co., individual bankers, who were believed by him at the time of the deposit to be solvent (but who in fact were insolvent), and that subsequent to such deposit Stark & Co. failed, made an assignment, and became unable to return the deposit of moneys so made by the supervisor to him, or to furnish him with means wherewith to honor the orders drawn upon him.

Appellants rely upon Supervisors v. Dorr (25 Wend. 440; S. C. affd., 7 Hill, 583). In that case Dorr was county treasurer, and had given a bond for the faithful execution of the duties of the office, and for the payment, according to law, of all moneys that should come into his hands as such treasurer, and the defense interposed to an action upon the bond was that the identical moneys received by him as county treasurer at his office in the city of Albany, and before he was requested to pay out the same was * * * feloniously stolen from his office, without any negligence, want of due care, or other blame or fault whatever on his part; ” and upon a demurrer to the plea it was insisted that the treasurer did not, upon the receipt of the money, become an absolute debtor to the county for the amount received, but that he held it as the agent of the county, and in the respect mentioned the case differs from the one before us; and in a note to the case found in 7 Hill, it is said the law seems to have been since settled, and properly, it is believed, directly the other way, by the case of Muzzy, Supervisor, v. Shattuck (1 Den. 233), decided by the Supreme Court in May, 1845.”

In Muzzy v. Shattuck (supra) the action was upon a collector’s bond of the town of Hamilton, conditioned to faithfully execute the duties of his office of collector, and in answer to an action upon it it was alleged that “ after he had collected the said moneys upon the said warrant issued by the said board of supervisors, etc., and before the return day of the said warrant, at the dwelling house of the said defendant in the town of Hamilton aforesaid, the said moneys in the said declaration mentioned as the amount to be paid over to the said treasurer of the county of Madison, were feloniously stolen, taken and carried away from the said dwelling of the said defendant by some person or persons unknown to the said defendant, who burglariously broke into the said dwelling house of the said defendant, in the night-time for that purpose; and that the said moneys were so stolen, taken and carried away feloniously as aforesaid, without any fault, want of care or omission of duty on the part of the said defendant; ” and, upon a demurrer to the plea, it was held that “ it is no defense that the collector had collected the money, and that the same had been stolen from his dwelling house, without any fault, want of care or omission of duty on his part.” The decision was affirmed by the Court for the Correction of Errors. And in the course of the opinion delivered by Jewett, J., in the Supreme Court, he says : “Nothing short of a credit or payment, in my judgment, amounts to the performance of the condition of the bond. * * * The statute imposes a definite liability on the collector and his sureties for the omission to collect and pay, and whether that omission is the result of misfeasance or neglect, unavoidable accident or felony committed by another, I do not think it furnishes any defense to the action.” Besides the note found in 7 Hill, to the effect that the case of Supervisors v. Dorr was overruled by Muzzy v. Shattuck, it appears in the opinion of Strong, J., in Boyden v. United States (13 Wall. 23), that upon an inspection of the two cases he was of the opinion that Supervisors v. Dorr “ is no longer authority even in the State of New York,” and he adds: “ Muzzy, Supervisor, v. Shattuck, subsequently decided and affirmed unanimously in the Court of Appeals, is utterly irreconcilable with it, and it has settled the law otherwise in that State.” However, in Nash v. Faulkner (107 N. Y. 487), after referring to the decisions in the Federal courts, and to the decisions in our State courts, it was said: “ In view of the decisions of the Federal and State courts above cited, and the fact that that decision has been much questioned, and has by some been supposed to have been overruled by the decision in Muzzy v. Shattuck, it should probably not be regarded as binding authority in this State, and the question therein decided may yet be regarded as an open one. When a case arises against an officer for not paying over and accounting for public moneys, intrusted to him in his official capacity, it will be necessary to determine whether his liability, in the absence of statutes specially defining it, shall be governed by the common law, or whether the broad and more rigid rule of responsibility laid down in the cases above referred to shall be enforced in this State. It is not necessary to decide that question in this case, because the money here received by the surrogate was not public money, but the money of a private estate or of private individuals.” Considering the force of the statute to which reference has been made, and the long line of authorities bearing on the pivotal question involved here, we may properly sustain the decision of the trial court overruling the defense. (Muzzy v. Shattuck, 1 Den. 233; United States v. Prescott, 3 How. [U. S.] 578; Boyden v. United States, 13 Wall. 21; Board of Education of Pine Island v. Jewell, 44 Minn. 427; District Township of Taylor v. Morton, 37 Iowa, 550; Thompson v. Board of Trustees of Township No. 16, 30 Ill. 99; Halbert v. Board of Commissioners of Martin County, 22 Ind. 125; Commissioners of Hennepen County v. Jones, 18 Minn. 199; Commissioners of Jefferson County v. Lineberger, 3 Mont. 231; Morbeck v. State ex rel. Jackson Township, 28 Ind. 86; Rock v. Stinger, 36 id. 346; District Township of Union v. Smith, 36 Iowa, 9; Hancock v. Hazzard, 12 Cush. [Mass.] 112; Board of Commissioners of Redwood County v. Tower, 28 Minn. 45; State of Nevada v. Nevin, 19 Nev. 162; State of Ohio v. Harper, 6 Ohio, 607; Inhabitants of New Providence v. McEachron, 33 N. J. L. 339; State ex rel. Board of Commissioners of Bladen County v. Clarke, 73 N. Y. 255; Commonwealth v. Comly, 3 Penn. 372.) It is quite obvious that the point decided in Nash v. Faulkner (supra) is not controlling in this case, and in pointing out the distinction between an officer holding public moneys in virtue of public statutes, and an officer who held moneys like a surrogate for the benefit of individuals, the court said of the latter, to wit, the surrogate: “ He is merely the trustee or agent of the private parties interested in the money, and no greater or higher responsibility should be imposed upon him than would be imposed upon any agent or trustee.” Inasmuch as the trial court found the questions of fact relating to the alleged negligence of the defendants and their good faith favorable to them to quite as great an extent as a jury would have been warranted in finding upon the evidence produced, we think the appellants cannot complain as to the mode of trial adopted at the Circuit. The foregoing views lead to an affirmance •of the judgment.

Merwin, J., concurred.

Martin, J.

(dissenting):

It seems to me that the weight of authority is to the effect that, in the absence of any statute enlarging it, the responsibility of a public officer is measured by the common-law liability of a bailee for hire, other than common carriers and innkeepers, and that while such an officer is bound to act in good faith and exercise reasonable diligence in the discharge of his duties, he is not responsible for the loss of money coming into his hands which occurred without fault on his part. (Supervisors v. Dorr, 25 Wend. 440; People ex rel. Nash v. Faulkner, 107 N. Y. 477; United States v. Thomas, 15 Wall. [U. S.] 337; Peck v. James, 3 Head [Tenn.], 75; Cumberland v. Pennell, 69 Maine, 357.)

I do not regard the cases of Muzzy v. Shattuck (1 Den. 233); Looney v. Hughes (26 N. Y. 514); Fake v. Whipple (39 id. 394), and Bradley v. Ward (58 id. 401) as in conflict with the doctrine of the foregoing authorities. The latter cases were all actions upon a collector’s bond, and it was held that under and by virtue of the express provisions of the statute relating to the collection of taxes, a collector upon receipt of his warrant became a debtor to the county in the sum which he is authorized to collect, and that such indebtedness could be discharged only by producing to the treasurer a duplicate receipt of the officer to whom the collector was directed to pay the moneys collected, or by making his affidavit that certain taxes remain unpaid, and that, upon diligent inquiry, he has been unable to discover any property belonging to the person charged with such taxes, whereon he could levy the same.

It is quite manifest, I think, that the cases first cited are not overruled by or in conflict with the latter ones, and that the question involved in this case is not affected by the doctrine of those decisions. While it has been said that the case of Supervisors v. Dorr was overruled by the decision in Muzzy v. Shattuck, it does not seem to me that that statement is correct. There was no mention of the former case in the opinion in the latter, and one at least of the judges who joined in the decision of the latter case concurred in the opinion of the prior one. I can see no reason why the case of The Supervisors v. Dorr should not be regarded as an authority upon this question. It is true that it was said in People ex rel. Nash v. Faulkner that as the decision in the Dorr case had been much questioned, and been supposed by some to have been overruled in the Muzzy case, it should, probably, not be regarded as binding authority in this State, and that the question therein decided may yet be regarded as an open one. The logic of that suggestion is not quite apparent, as it had already been distinctly stated that there was no conflict between the two decisions ; that the Muzzy case did not expressly or by implication overrule the decision in the Dorr case, and that the supposition that it had been so overruled was erroneous. IJnder such circumstances, I cannot perceive any reason for rejecting the Dorr case as an authority, nor why it should not be given the weight to which any decision of that court is entitled. I am of the opinion that the decision in the Dorr case, if not controlling or binding, should be regarded as some authority upon this question, and when considered in connection with the other cases cited, should be regarded as persuasive authority upon the question of the liability of a public officer for the loss of money which comes into his official custody and is lost without any fault upon his part. I think that, independent of any-provision in the bond which enlarges or increases the liability of the officer, a public officer is not responsible for the loss of money which comes into his official custody, occurring without fault on his part.

This leads to the consideration of the question whether the provisions of the bond, in suit in any way increased or enlarged the defendant’s liability. The condition of the bond was that the defendant should “safely keep, faithfully disburse and justly account for all the school moneys which have or shall come into his hands, apportioned and paid from the State treasury, and all other school moneys that have or may come into his hands from any other source.” This bond does not, 1 think, in any essential particular differ from that of a county treasurer or of a surrogate, and with regard to the latter, the Court of Appeals in People ex rel. Nash v. Faulkner (107 N. Y. 489) said: “ There is nothing in the phraseology of the bond given by the surrogate which enlarges his statutory liability. It is a bond simply for the faithful performance of his duties, and the faithful application and payment of all moneys that may come into his hands. It imposed upon the surrogate no broader responsibility or liability than the statute. It was simply designed to enforce and secure the faithful discharge of his duties, and any defense which he would have had when called to account for the money which came to his hands is available to his sureties when sued upon the bond.” Within the principle of that case and the case of The Supervisors v. Dorr, I think it should be held that there was nothing in this bond which in any way increased or enlarged the liability or responsibility of the defendants, and that as the trial court has found that the defendant Merrill acted in good faith, and that the moneys were lost without any fault or negligence on his part, the plaintiff was not entitled to recover.

Thus I am led to dissent from the opinion in this case of my brother Hardin.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    Clarence F. Hill and Others, Respondents, v. The Board of Water and Sewer Commissioners of the Village of Watkins, Appellant.

      Guardian ad litem appointed pending the action to replace one improperly appointed — use of an unproved map in opening the case — in an action of trespass possession is sufficient — proof of title wider a general denial.

    In an action brought by one Hill as guardian ad litem of certain infants, the complaint alleged and tlie answer denied that the plaintiff had been duly appointed the guardian ad litem of such infants. Upon the trial it appeared that Hill had not been duly appointed such guardian ad litem, and thereupon, upon the application of the counsel for the plaintiffs, the original petition being before the court, and it appearing that one Russell was a responsible and proper person, and had filed a written consent duly executed, the court, over the defendant’s objections, made an order appointing Russell guardian ad litem, and substituting him in the place of Hill, which order directed that the pleadings be amended in conformity with such appointment.

      Held, that such proceeding was authorized.
    It is a matter resting in the discretion of the trial court to allow or to refuse to allow the attorney for the defendant, upon the trial of an action, in opening his case, to explain the facts of the case from a map which has not been then proved or put in evidence.
    In an action of trespass on real estate the general rule is that possession thereof by the plaintiff is sufficient to maintain the action against the wrongdoer, and that a general denial contained in the answer is not sufficient to put the plaintiff’s title in issue.
    Appeal by the defendant, The Board of Water and Sewer Commissioners of the Yillage of Watkins, from a judgment of the County Court of Schuyler county in favor of the plaintiffs, entered in the office of the clerk of the county of Schuyler on the 21st day of April, 1893, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of April, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      O. M. Woodward and O. P. Hvt/rd, for the appellant.

      Irving W. Gole, for the'respondents.
   Merwin, J.:

This action is brought to recover damages for the diversion of a stream of water. In the complaint it is alleged that the plaintiffs are, and were at the time of the alleged diversion, the owners, and in possession of certain real estate in the village of Watkins, consisting of a house and twelve lots of the value of $10,000; that about 1,213 feet to the westward of plaintiffs’ premises a natural stream of water arises from several springs of water on the lands of one Beach, and, prior to its diversion by defendant, flowed from thence in an easterly direction in a clearly defined ■ natural channel down across the plaintiffs’ premises, and thence into Seneca lake; that this stream had always been a living and perpetual stream of water, and had always run down such natural channel, about 300 feet of which was across the plaintiffs’ premises ; that in the yeax’s 1890 and 1891 the defendant constructed a system of water works, and built reservoirs, and in obtaining water to fill the same, it did, without the authority of plaintiffs, and without right so to do, wrongfully appropriate and divert the said stream of water at a point where it is fed and supplied by the said springs, and appropriated the waters of said springs and stream to its own use, and that the plaintiffs are thereby deprived of the use and benefit of the same to their great damage. The answer contained, among other things, a general denial, and an allegation that the defendant had a right to take the water in controversy under a deed from Beach dated December 3,1890. The verdict represents the diminution in the rental value of plaintiffs’ preñases by reason of such diversion from the time of the diversion in June, 1891, to the time of the commencement of the action in April,. 1892.

(1) Evidence was given on the part of the plaintiffs tending to prove the allegations of the complaint, and the motion for a nonsuit was, we think, properly denied. It was a question of fact whether the defendant appropriated springs from which there flowed a watercourse, as claimed by the plaintiffs.

(2) At the time of the commencement of this action the plaintiffs were infants, and the action was in form hy George G. Hill, their guardian ad litem. In the complaint it was alleged that George G. Hill had been duly appointed such guardian, and this was denied by the answer. Upon the trial it appeared that he had not been duly appointed. Thereupon, upon the application of the counsel for the plaintiffs, the original petition being before the court, and it appearing that Emmett B. Russell was a responsible and proper person, and had filed a written consent duly executed, the court made an order appointing Mr. Russell guardian, and substituting him in the place of Mr. Hill, and directed that the pleadings be amended in conformity with the appointment. The defendant objected that the appointment at that time was not proper. It was, we think, authorized hy the rule laid down in Rima v. R. I. Works (120 N. Y. 433). The order itself as entered is not appealed from.

(3) The counsel for the defendant, in opening the defendant’s case, asked to be allowed to explain the facts of the case from a map which had not then been proved or put in evidence. The plaintiffs’ counsel objected, and the court sustained the objection, and defendant excepted. This was a matter in the discretion of the court, and no circumstances are apparent indicating an abuse of such discretion. The case of Battishill v. Humphreys (64 Mich. 494) is cited to sustain the exception. In that case a new trial was granted. In an opinion by one of the justices several grounds for reversal are stated, and, among others, it is stated that the counsel for the defendant should have been allowed in the opening to use a diagram of the premises. The other justices concurred in the result. It does not appear that they placed any reliance on the point as to the diagram.

(4) The defendant at the close of its case offered in evidence a deed from George G. Freer to John Magee, dated September 1, 1862, and recorded December 11, 1862, and in connection with this offered to show that Freer was the original owner of the Beach farm on which the springs in question are situated, and also of the premises now owned by the plaintiffs, and that before he conveyed to the parties who conveyed to plaintiffs he gave the deed to Magee. This evidence was offered with a view of showing that the plaintiffs had no right in the stream, the defendant claiming that the deed to Magee operated to transfer to him all the water lights on the farm. To this evidence the plaintiffs objected that no such, defense was set up in the answer, and upon that ground the court excluded it. It was also objected to as incompetent and improper, and the objection sustained. Exception was duly taken. Upon this matter there are two questions, one being whether under a general denial in a case like the present the defendant can show title in a third person, and the other being whether the evidence offered, assuming it to be admissible under the pleadings, amounted to a defense, or was material.

It has been held that in an action of ejectment the defense of want of title in plaintiff is admissible under a general denial. (Benton v. Hatch, 122 N. Y. 322; Gilman v. Gilmam, 111 id. 265.) In Wheeler v. Lawson (103 id. 40) it was held that where, in an action of trespass for the unlawful taking and conversion of personal property, it appears that at the time of the taking complained of the plaintiff was in the actual possession thereof, it is no defense to show title in a third person. The defendant must connect himself in some way with the owner. A like view was taken in Griffin v. Long Island R. R. Co. (101 N. Y. 354); People v. Hagadorn (104 id. 519, 520). So that in such a case the evidence of want of title in plaintiff would not be available under a general denial. The general rule is that in an action of trespass on real estate in tbe possession of the plaintiff, the possession is sufficient to maintain the action against a wrongdoer (Rood v. N. Y. & E. R. R. Co., 18 Barb. 84; 2 Greenl. Ev. § 618), and, therefore, a general denial does not put the title in issue. (Squires v. Seward, 16 How. 478.) There is some force in the suggestion that in the present case the action is in substance for a trespass upon rights in plaintiffs’ possession, and that a general denial by the wrongdoer does not put in issue the title.

Assuming, however, that the evidence was admissible under the pleadings, did it amount to a defense ? It was not claimed that defendant held under Magee. It, in fact, already appeared that defendant claimed under Beach by deed subsequent to that under which plaintiffs held. The terms of the deed to Magee are to be considered. By it Freer granted to Magee and to his heirs and assigns forever “ the right and privilege of taking water from the farms of the said George G. Freer,” describing them in general terms, and gathering together and concentrating said water in one or two reservoirs, and from thence conducting the same through any lands of the said George G. Freer into the said village of "Watkins, with a view of supplying such of the inhabitants of said village with water as may agree for the same with the said John Magee, his heirs or assigns, and for other purposes; and the said John Magee shall have the privilege to enter upon said farms and premises to effectuate ■said purposes, and to make ditches and drains, underground or otherwise, for the purpose of collecting the water into a body; and to dig, •construct and finish reservoirs to receive and hold the same in such place or places as he may deem necessary, and at all times to enter upon said farms and premises, doing as little damage as may be, for the purpose of repairing and keeping the waterworks in order.” It is not claimed that Magee or his assigns ever entered or asserted any rights under this deed. The grant was only of the right and privilege to take. The amount was indefinite. Whatever was not taken belonged to the owner of the farms to the same extent as before the grant. So, until the water was taken, it remained a part of the farms as before, and so far as it was a natural stream, the owners, or whoever was interested, were entitled to have it run as before. The subsequent deed from Freer to the predecessors of plaintiffs gave them the right to have the stream run in its natural course, subject only to the exercise by Magee of his right and privilege. Until that was exercised the plaintiffs’ right to the use was perfect. (Washburn on Easements [4th ed.], 306; Nevada County & S. Canal Co. v. Kidd, 37 Cal. 282, 311, 319.) It would, therefore, follow that, in the absence of any claim that Magee or any one under him had ever entered under his deed or made any claim to the water, the deed itself did not show a want of right in plaintiffs to have the water continue in its natural course. Upon this ground the deed was not material, and was properly excluded.

(5) Our attention is called to some other exceptions to rulings upon evidence, but we find in them no sufficient basis for reversal. The-defendant also claims érror in the refusal to charge several requests. The court, in its charge, very distinctly placed the right of the plaintiffs to recover upon the question whether, at the point where the defendant made its excavations, there was then a spring or springs-from which there was a watercourse extending to and across the plaintiffs’ lands. This was the vital question in the case. (Bloodgood v. Ayers, 37 Hun, 359; Colrick v. Swinburne, 105 N. Y. 503.) The charge covered the substance of most of the requests and contained all that was material for the fair disposition of the case. We are not persuaded that the court in its refusals to charge requests committed any error that calls for the intervention of the appellate-court.

The foregoing considerations lead to an affirmance.

Hardin, P. J., and Martin, J., concurred.


author: Per Curiam :

text:
    Anna E. Grant, an Infant, by Ada L. Grant, Guardian ad Litem, Respondent, v. The Village of Groton, Appellant.

      Damages for personal injm'ies — evidence of plaintiff’s decimations as to headache — non-expert evidence.

    In an action brought to recover damages for personal injuries, alleged to have been sustained by reason of the negligence of a village, it is an error to receive in evidence declarations of the plaintiff as to headache, made several months after the occurrence of the accident, and to permit non-expert witnesses to testify as to the mental condition and impaired memory of the plaintiff after the accident.
    Appeal by tbe defendant, Tbe Village of Groton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 6th day of November, 1893, upon the verdict of a jury rendered after a trial at the Tompkins Circuit, and also from an order entered in said clerk’s office on the 24th day of October, 1893, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff because of the negligence of the defendant in the maintenance of its streets.

      G. M. Stoddard, for the appellant.

      Smith <& Dickinson, for the respondent.
   Per Curiam :

In the course of the charge the trial judge submitted to the jury the question whether it was a negligent act, or a prudent act, or an imprudent act and a negligent act on the part of the commissioner to omit to put up a warning or guards at the end of the sidewalk to-keep people from walking off from the sidewalk and on to the' bridge which was in that defective condition. He added: “ If you. say it was an imprudent act, it was a negligent act, why then the village is responsible for the negligent act of the commissioner of highways,- for it was his business to keep those roads in safety. He-was acting for the village in that respect.” And again he charged: “ But it was his business to take care that the sidewalks were hot permitted to be left open to this hole.” An exception was taken to the charge as thus given. No such negligence was alleged in the complaint, and it is at least questionable whether the plaintiff should have been permitted to recover upon the ground so stated in the charge.

We think it was error to receive the declarations of the plaintiff as to headache made several months after the accident occurred. (Roche v. R. R. Co., 105 N. Y. 294.)

Non-expert witnesses were improperly permitted to testify as to the mental condition and impaired memory of the plaintiff after the accident occurred.

We grant a new trial upon the exceptions.

Present — Hardin, P. J., Martin and Merwin, JJ.

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


author: Hardin, P. J.:

text:
    The People of the State of New York, Respondent, v. Harry Burton and Another, Appellants.

      Arson — acts and declarations of defendant — motive and credibility of testimony a question for the jury — charge of court — need not be repeated — when a verdict will not be set aside as against evidence.

    Upon, the trial of a person for the crime of arson, it is proper for the trial' court to receive evidence of the movements and acts of the defendant during the night, a short period prior to the breaking out of the fire in question, and the declarations of such person are admissible in evidence, not for the purpose of establishing an independent crime, but with a view to establishing the condition of mind in which the defendant was.
    Evidence to establish a fact by the confessions of a party should always be scrutinized and received with caution, and it must be assumed that a jury, upon rendering a verdict on a criminal trial, has performed its duty in scrutinizing, weighing and comparing the admissions shown to have been made by the defendant, with all the facts and circumstances appearing in the case.
    Upon the trial of a person for the crime of arson, it is proper for the court to leave the question as one of fact for the jury to determine, whether a motive for the crime was or was not disclosed by the evidence.
    The (jegree of credence to which the testimony of a person on trial for the alleged commission of a crime is entitled should be determined by the jury and not by the court.

      A court cannot, be required to repeat a portion of its charge or answer again to different portions thereof as analyzed by counsel.
    Upon a criminal trial, a charge to the jury that the defendants are presumed to be innocent until the contrary is proved and that, in case of a reasonable doubt as to the guilt of either of them, that one is entitled to an acquittal, sufficiently suggests the benefit of a reasonable doubt therein.
    Upon an appeal from a judgment convicting a person of a crime, the court will not interfere with the verdict of a jury unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption, and the fact that there is in the judgment of the court a rational doubt of the guilt of the defendant is not a sufficient ground for a reversal.
    Appeal by tbe defendants, Harry Burton and another, from a judgment of the Court of Sessions held in and for the county of Otsego on the 8th day of December, 1892, convicting the defendants of the crime of arson.
    In the Otsego Oyer and Terminer of October, 1892, the defendants were indicted, charged with having, on the 14th day of June, 1892, at the town of Oneonta, committed the crime of arson in the second degree, by having in the night-time “ willfully, maliciously and feloniously set on fire, with intent to burn the same, a building not inhabited, to wit, a blacksmith shop, there situate on Main street in the village of Oneonta, N. Y., belonging to and owned by Ann Elizabeth Amsden, and adjoining and within the curtilage of an inhabited building known as the Lacey Block, in which there was at the time thereof divers human beings, endangering the said Lacey Block and the lives of the occupants thereof,” and thus having violated section 48Y of the Penal Code.
    After the verdict was received in the Court of Sessions, where the trial took place in December, 1892, a sentence was pronounced that the defendants be imprisoned for the term of six years and six months, and upon the conviction and sentence judgment was entered and a bill of exceptions was prepared and settled and ordered filed in the office of the clerk of the county of Otsego and annexed to the judgment roll. The defendants appeal to this court “from judgment of conviction rendered against them * * * on the 8th day of December, 1892.”

      Gibbs & Wilbur, for the appellants.

      Frank L. Smith, District Attorney, for the respondent.
   Hardin, P. J.:

Prom the evidence it appears that the blacksmith shop mentioned in the indictment is a wooden building, which was discovered to be on fire at the rear end thereof, and was situated within about three feet of the Lacey Block, which is also a wooden building, and the roof of the blacksmith shop is built into or against the Lacey Block, The. description of the location of the buildings, and their situation with respect to each other, sufficiently indicates that the fire in the blacksmith shop endangered the Lacey Block. The fire was discovered about four o’clock in the morning of June fourteenth on the outside of the blacksmith shop, at the rear end thereof, and the circumstances attending the discovery of the fire sufficiently indicate that it was caused by an incendiary act, and warranted the jury in finding that the fire was incendiary. The evidence also indicated that the defendants had spent the larger portion of the night in and about the village drinking and carousing, and that they had passed these premises several times during the night in company with each other, and that about two o’clock preceding the fire one of the defendants endeavored to obtain beer from one Hecox, who conducted the business of bottling beer in the basement of the Lacey Block, next to the blacksmith shop, and that on being refused he became angry. The defendants were in company with one Osterhout and others a portion of the night preceding the discovery of the fire, and had been drinking very extensively in the yard of the boarding house where one of the defendants boarded, about one o’clock at night, when they were driven out of the yard by the keeper of the boarding house. Subsequently, in company with Osterhout, they went up the street, passing in the vicinity of the blacksmith shop, and when they reached the Windsor Hotel one of the defendants got possession of six bottles of íager beer, after drinking some at the hotel, and, after obtaining the bottles of beer, they went back down Main street, passing the blacksmith shop and halting near the residence of Barnes, where they continued their drinking. In speaking of the movements of the defendants Osterhout testifies: “ We went down Main street by this blacksmith shop and down to and in front of the residence of A. M. Barnes, the undertaker, and there is a low stone wall next to the sidewalk.* We drank the lager up, laid the bottles on the bank. I said I would fetch the bottles back, and they proposed to set the building afire. I can’t tell which one spoke first; they both talked about it. They did not say what building. They didn’t say with reference to any wooden building. They said they wanted to set fire where it would make the biggest fire. They said I had better go along. I told them I wouldn’t, and got up and picked up the bottles and went back to the Windsor. They got up and started in the opposite direction, as I started up the street. I started up the street and went to the Windsor Hotel, and they started towards the railroad track.” It appears by this witness that upon reaching the Windsor Hotel a conversation was had. and the witness continues: “I heard one of them say, I can’t tell which one it was, said: ‘ There will be a hell of a time around there in a few minutes.’ I can’t say whether it was Clapper or Burton that said that: they were both present when one of them said it. They went right out: didn’t stay there over five minutes, I don’t think. They went out together. I couldn’t say how long after they went out before I heard an alarm of fire. Oh, it might have been twenty minutes or half an hour. It might not have been as long as that. The alarm I heard was, Bissell went up stairs to call the help, came down stairs and he says, £ By God, there is a fire out there.’ Ered Bissell, the clerk said so. I went out doors then and I saw the fire in back there. I couldn’t tell just exactly where it was then. It was down on Main street;' the hose cart came down along there, but I could see the fire on the rear of the blacksmith shop from the Windsor when I came out.” We think the evidence produced upon the trial was such that the court was required to submit the question of the guilt or innocence of the defendants to the jury, and that there is sufficient evidence in the case to warrant the finding made by the jury.

(2) We think no error was committed by the trial court in receiving evidence of the movements and acts of the defendants during the night, at a short period prior to the breaking out of the fire. The declarations of the defendants were not received for the purpose of establishing an independent crime, but rather with a view of establishing the condition of mind they were in; as said in People v. Everhardt (104 N. Y. 595): “ Such proof is not received for the purpose of showing other crimes than that charged in the indictment, but for the purpose of showing the guilty knowledge and intent which are elements of the crime charged.”

(3) Ve are of the opinion that the court committed no error in refusing to advise an acquittal of the defendants at the close of the evidence offered by the People. The learned counsel for the appellants endeavors to escape the force of some of the evidence given by the People upon the suggestion that some of the admissions made are to be taken with caution; and calls our attention, to Law v. Merrills (6 Wend. 277). In that case it was said that “ Evidence to establish a fact by the confessions of the party should always be scrutinized and received with caution.” We assent to the doctrine; and we must assume that the jury performed its duty in scrutinizing, weighing and comparing the admissions shown to-have been made with all the facts and circumstances appearing in the case. Our attention is also invited to Garrison v. Akin (2 Barb. 27), where Judge - Harris, in speaking of admissions, says: “ It is so easy, too, by the slightest mistake or failure of recollection, totally to pervert the meaning of the party and change the effect of his declarations, that all experience in the administration of justice has proved it to be the most dangerous kind of evidence,, always to be received with great caution, unless sustained by corroborating circumstances. Then, indeed, the character of this species of evidence is changed, and the mind receives it without suspicion.” We think it was, within the spirit of that authority, the duty of the trial judge to submit the force and effect to be given to the declarations or admissions of the defendants to the jury, and that no error was committed in that regard.

(4) Defendants called one Jones as a witness, who was a baker by trade, and the bakery in which he was at work on the night of the fire was in a small store in the basement on the opposite side of the street from the blacksmith shop and a little further east, and he testifies that about ten o’clock of the night in question the defendant Clapper entered his shop and that Burton was on the sidewalk, and that he saw him after that in the bake shop at half-past twelve and received from him a couple of bottles of beer, and that he next saw him about half-past three or twenty minutes to four coming across the railroad track on Main street, coming toward the bakery and from the direction of Mrs. Martin’s where he • was boarding, and that Burton was with him. The witness continued: “ They were wrestling and punching each other as boys would that liad a little in them. Burton couldn’t get along very well. I couldn’t say whether they got down in the dirt. They were tumbling around there quite a little this side of the crossing. "When crossing there they were on the sidewalk and in the highway both. That was at half-past three and I was in the bake shop door. I next saw them, after seeing them at the crossing, come up by the old blacksmith shop on the other side of Main street, I don’t know who owns it, by Mrs. Fox’s millinery store which is on the same side of the street as the bakery. I was in the door of my bake shop. They came right along up past Grove street and down to me, and past the blacksmith shop in question. They stopped there and Mr. Clapper came down to me and got a few cakes— cookies — I had baked that lay on the table. He wanted to get money of me. I should say he was there about twenty minutes. He ate some cookies and was monkeying with the bread and wanted to get money of me. * * * When they. left my bakery it was about five minutes to four, which was the last I saw of them till I went home to breakfast. I heard the aiarm of fire. I was the first that heard it, about five, eight or ten minutes, or something like that, after defendants left me.” This witness was very extensively cross-examined as to all the circumstances mentioned by him in his testimony in chief and as to the surrounding obstacles and buildings, and as to the maneuvers and whereabouts of the defendants, and when the district attorney was summing up the defendants’ counsel asked the court to direct the district attorney that there is no evidence in this case that there are buildings to obstruct the vision of the witness Jones from the bake shop to the crossing.” The request was refused and an exception was taken, and the court thereupon remarked : “ I will leave it to the jury to say whether there are any buildings or not.” In the course of the opinion delivered in People v. Rohl (138 N. Y. 620) it was said: “ The district attorney had a right to allude to any circumstance disclosed by the evidence which, in his view, rendered the story of the defendant improbable.” (See, also, Fry v. Bennett, 2 Bosw. 684.) "We think the trial court committed no error in refusing to place the restrictions upon the district attorney requested by the defendants. After the trial judge had delivered a careful charge, covering all the essential elements of the case he was. requested to charge that the jury may and should take into consideration that no motive has been shown on the part of the defendants to commit the offense charged.” The court refused to request “ upon the ground that it is the province of the jury to say whether there is a motive or not from the evidence,” to which the defendants excepted. In Shepherd v. The People (19 N. Y. 544) Judge Denio, in speaking of the ground upon which evidence of motive inducing the commission of a crime in cases resting upon circumstantial evidence is received, says : “ It does not of itself prove anything, but it tends to remove the improbability of his having done an act which he must have known to be wrong.” In People v. Bennett (49 N. Y. 138) Church, Ch. J., in speaking for the court, says: “ Motive is an inducement, or that which leads or tempts the mind to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act which has been clearly proved, but for the important aid it may render, in completing the proof of the commission of the act when it might otherwise remain in doubt. With motives, in any speculative sense, neither the law nor the tribunal which administers it has any concern.”

In People v. Trezza (125 N. Y. 740) it was held : “Whether the acts of the aceused jiroceeded from some motive, or from general depravity .of mind and a reckless disregard of human life, in either case, in the absence of lawful excuse or justification, if the other elements of the crime charged are proved, a conviction is proper.”

In People v. Minisci (12 N. Y. St. Repr. 719) Smith, P. J., said, in speaking of motive: “ It is enough that the evidence does not absolutely exclude the existence of motive.” We think no error was committed by the trial judge in leaving the question, as one of fact, for the jury to determine, whether there was a motive for the crime disclosed by the evidence.

Defendants also requested the court to charge “ that the defendants are presumed innocent until they are proven guilty, and that the burden of proof rests upon the People to satisfy them beyond a reasonable doubt.” This request was refused by the court “ upon the ground that he had so charged already,” to which refusal the defendants excepted. In the body of the charge it was said : “ The , defendants are presumed to be innocent until the contrary be proved, and in case of a reasonable doubt as to tbe guilt of either of them, that one is entitled to an acquittal.” We think the trial judge properly refused to repeat that portion of his charge in response to tlie request made: The benefit of a reasonable doubt was suggested in the course of the charge, and no rule of law was violated in that regard. (Raymond v. Richmond, 88 N. Y. 671.) We think the trial court observed the rule laid down in O’ Connell v. The People (87 N. Y. 377), and, as was said in that case, “ the court could not be required to repeat it (a portion of his charge) or answer again to different portions as analyzed by counsel.”

(5) Appellants criticise the testimony of Osterhout and refer to their own, and urge upon this Court to hold that the jury have found contrary to the testimony given by themselves. We think it was for the jury to determine what credence should be given to Osterhout, and what faith and credit should be given to the defendants as witnesses in their own behalf.

In Newman v. People (63 Barb. 631) it was said; “ The degree of credit to which he (the defendant) was entitled was to be decided by the jury and not the court.” In speaking of the force and effect that should be given to the verdict of a jury, it was said in People v. Taylor (138 N. Y. 398) that the court will not interfere with it, “ unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption. If, in the judgment of this court, there was a rational doubt of the guilt of the defendant it would not be a sufficient ground for reversal.”

Applying the rule thus laid down to the evidence presented in this case, we áre of the opinion that the verdict should remain. See section 542 of the Code of Criminal Procedure.

Martin and Merwin, JJ., concurred.

Conviction and judgment of the Court of Sessions of Otsego county affirmed, and after the judgment is entered in the judgment book a certified copy of the entry shall be forthwith remitted to the clerk of Otsego county, “with whom the original judgment roll is filed,” in accordance with section 547 of the Code of Criminal Procedure.


text:
    Francenia Lanpher, Respondent, v. Jackson Clark, Appellant.

      Slander —justification, when insufficiently pleaded — amendment of the answer on the trial — evidence in mitigation of damages — power of an a/ppellate court to modify a verdict — when exercised.

    The justification contained in the answer in an action for slander must be as broad as the charge made, and in case the justification is not as broad as the charge, it is not incumbent upon the plaintiff to move to make .the answer more definite and certain, but she has the right to object on the trial to the reception of any evidence not authorized by the answer.
    A motion, made upon the trial of an action brought to recover damages for slander, for leave to amend the answer in such wise as to make the justification alleged therein in mitigation of damages as broad as the charge, is addressed to the discretion of the court.
    In an action of slander only such matters are competent in mitigation of damages as were known to the defendant before and at the time of uttering the slanderous words.
    The complaint in an action for slander stated that the slanderous words were uttered as stated therein “in and about the- month of July, 1892, the exact dates the plaintiff cannot now more particularly state.” Upon the trial evidence was allowed, against the defendant’s objection and exception, as to conversations which occurred in May and June of that year.

      Held, that the rule made by the trial judge did not transcend the rule of law applicable to such cases.
    The General Term of the Supreme Court, upon an appeal from a judgment in favor of the plaintiff in an action brought to recover damages for slander, has the power to reduce the damages awarded by the jury if it entertains the opinion that the award was excessive; but when a verdict is rendered upon conflicting evidence, as to the essential features of the case which entered into the question of damages, both compensatory and punitive, which is not so large as to indicate passion or prejudice, it is not in accordance with the general rules of such court to interfere with such a verdict.
    Appeal by tbe defendant, Jackson Clark, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Oneida on tbe 12tb day of May, 1893, upon tbe verdict of a jury rendered after a trial at tbe Oneida Circuit, witli notice of an intention to bring up for review on such appeal tbe final judgment record, and all proceedings and evidence, objections and exceptions bad and taken upon tbe trial, and also an order made on tbe 1st day of May, 1893, and entered in said clerk’s office, denying tbe defendant’s motion for a new trial made upon tbe minutes.

      Sayles, Secwie c& Scm/les, for the appellant.

      Olney <& Wiggins, for the respondent.
   Hardin, P. J.:

In 1892 the plaintiff was residing at Delta, and was the owner and proprietor of a hotel known as the Hotel Lanpher. Her complaint alleges that the defendant uttered defamatory statements with intent to injure the plaintiff in her reputation and her business. Evidence was given tending to establish the allegations of the complaint, and evidence was given in behalf of the defendant contradicting the evidence offered by the plaintiff in many respects, and a sharp question of fact was presented for the jury to determine what words were uttered by the defendant. Plaintiff’s evidence indicated that on sundry occasions he charged the plaintiff with keeping a hotel which was the resort of thieves and murderers; also, that the hotel was a den of thieves and murderers,” and that on one occasion the defendant said, pointing to the plaintiff who was standing in the door of the hotel, “ I will have that bitch out of her den before Saturday night; they are a nest of bitches,” and on another occasion he said, there’ was a pack of thieves down to that hotel; a den of thieves; they run a ranch, and Mrs. Lanpher would murder but she would carry her point; * * * that she belonged to a desperate gang called Ku Klux; * * * the hotel gang of thieves. That damned bitch of a Mrs. Lanpher;” and that on another occasion the defendant said, he guessed it was the damned thieving gang at the hotel that had thrown him and hurt his arm; they were a pack of thieves.” “ That the kind of boarders, kept at the plaintiff’s hotel were those having the bad disease.” The defendant’s answer denied the allegations of the complaint and alleged: “ That the house known as the c Lanpher House ’ at Delta is and was kept and run as a disorderly house. That it was the place wherein immoral persons for immoral purposes congregated' and where conspiracies were formed to injure this defendant, and it was from said hotel they started to carry out said conspiracies so formed. That said house, hotel and place, as defendant alleges upon information and belief to be, was a place where lewd and immoral people congregated, and that’ the plaintiff herself is a lewd, unchaste, boisterous, immoral woman, and has conducted and run the hotel in an improper and disorderly manner. That upon the trial of this cause the defendant will give evidence of the facts and circumstances as alleged in the second count of this answer by way of mitigation or justification of the things, allegations and charges made in said plaintiff’s complaint.” The answer fails to comply with the rules requiring the justification to be as broad as the charge made, and the court committed no error in holding that the answer did not contain allegations sufficient to amount to a justification of the charges contained in the complaint. (Hathorn v. Congress Spring Co., 44 Hun, 608; Steffen v. Schaefer, 39 N. Y. St. Repr. 796; McKane v. Brooklyn Citizen, 53 Hun, 132.) It was not incumbent upon the plaintiff to move to make the. answer more definite and certain,- but she had a right to object at the trial to the reception of any evidence not authorized by the answer. (Orvis v. Dana, 1 Abb. N. C. 286.)

(2) Whether the defendant should, in the midst of the trial, be permitted to amend his answer in the manner and to the extent proposed was a question addressed to the discretion of the court. The case fails to indicate that the discretion was abused. (Morrison v. Agate, 20 Hun, 25; Rosenwald v. Hammerstein, 12 Daly, 377; Avery v. Starbuck, 25 N. Y. St. Repr. 354; S. C. affd., 38 id. 900; Oregon Steamship Co. v. Otis, 27 Hun, 454.) It may be observed that, among other things, the defendant proposed to amend his answer by inserting “ various things which the plaintiff did at the place from which she came,” and by alleging specific facts occurring subsequently to the publication of the slander. It is well settled that only such matters are competent in mitigation as were known to the defendant before and at the time of uttering the slanderous words. (Hatfield v. Lasher, 81 N. Y. 246; Willover v. Hill, 72 id. 36.)

(3) In the complaint it was alleged that the slanderous words were uttered “in and about the month of July, 1892, the exact dates the plaintiff cannot now more particularly state.” Evidence was allowed stating conversations which occurred in May and June of that year, against the defendant’s objection and exception. We think the ruling made by the trial judge did not transcend the rule of law applicable in such cases. (Inman v. Foster, 8 Wend. 602; Titus v. Summer, 44 N. Y. 266; Distin v. Rose, 69 id. 122.)

(4) It is claimed in behalf of the defendant that the damages awarded by tbe jury are excessive. Doubtless this court has power to reduce the damages if it entertains the opinion that the award by the jury was excessive. (Holmes v. Jones, 121 N. Y. 461.) In that case it is said in the opinion that where the justification is not made out, it is for the jury to determine the amount of damages to be awarded, and it is said: “ If they came to the conclusion, from the circumstances and the nature of the charge made, that the publication was malicious, in bad faith, or recklessly, carelessly or wantonly made, they could go beyond compensation and award punitive damages.” In the case before us, if the jury had believed the tesmony of the defendant, it would have found a verdict of no cause of action ; if it had believed the testimony of the defendant’s witnesses, who spoke as to the character of the plaintiff while she was a resident of Exeter and elsewhere, and also had believed that the utterances made by the defendant were not malicious, doubtless a. smaller verdict would have been given, if any. It was for the jury, however, to consider the evidence which impeached the character of the plaintiff for truth and veracity, for sobriety and chastity, in connection with the other evidence tending to sustain her character’ offered in her behalf, and in the light of all the circumstances disclosed to determine the question of damages. With such a great, conflict in the evidence upon the essential questions which entered into the question of damages, both compensatory and punitive, before the jury, and a verdict rendered thereon which is not so large as to indicate passion, prejudice or corruption, it is not in accordance with well-established rules of this court to interfere with such a verdict. (Webber v. Vincent, 29 N. Y. St. Repr. 603.) In that case it was said the case was a peculiar one. The degree of aggravation depended on the view taken by the jury of the evidence as given before them. No sufficient ground is made apparent, for us to interfere.” (Graves v. Gilchrist, 29 N. Y. St. Repr. 638; Holmes v. Jones, supra; Hartman v. Morning Journal Association, 46 N. Y. St. Repr. 181; Scott v. Sun Printing & Pub. Association, 74 Hun, 287.)

Numerous rulings as to admission and rejection of evidence were-made upon the trial, and the defendant took several exceptions which have been pressed upon our .attention, and consideration has been given to them, and after a careful view of the course of the trial and the rulings made by the trial judge, it is not believed that the exceptions present prejudicial error.

In Richardson v. Northrup (56 Barb. 105) the answer contained suitable allegations in mitigation of damages, and an attempt was made to show provocation for the utterance of the words, and it was said that to justify the admission of such evidence it must appear “ that the provocation was continued down to and at the time the words were spoken.”

The foregoing views lead us to the conclusion that the verdict should stand.

JVIaRtiN and MeewiN, JJ., concurred.

Judgment and order affirmed, with costs.


author: MayhaM, P. J. :

text:
    Charles W. Little, Respondent, v. A. Bleecker Banks, Appellant.

      donstruction of a contract — when the fact that it leads to ruinous consequences map be considered — Code of Oivil Procedure, section 211— time within which a contract is to be performed.

    If a contract, by a fair construction, leads to ruinous consequences, it is not the province of the court to intervene to save a party from the serious results which may follow from it; hut when the construction is doubtful and the real intention of the parties obscure, that fact may be taken into consideration in endeavoring to arrive at the meaning and intent of the contracting parties.
    The State officers who are empowered by section 211 of the Code of Civil Procedure to make a contract for the publication of the Court of Appeals Reports, act, in making such contract, under special and limited authority conferred on them, whereby their power to contract is limited to three years from the expiration of the time specified for that purpose in the last contract.
    'Where the time of performance of a contract is not in terms specified therein, the law interprets the contract to demand performance within a reasonable time.
    A contract entered into on the 12th day of December, 1877, between the State of New York and a firm of publishers for the publication of the Court1 of Appeals Reports provided as follows: “The said party of the second part further agrees that he will, after publication of any volume of said reports, in pursuance of this contract, keep the same on hand for open and public sale, and will sell and deliver the same to any and all person or persons desiring to purchase, at and for the price of forty-eight cents per copy for each and every volume.”

      Held, that such contract required such firm to print, bind and keep on hand for sale at its store, such books as the State Reporter provided such firm with the materials to make, during the period of three years therein specified, and for such reasonable time thereafter as was required to finish the books in process of completion at the expiration of such three years, and to dispose of them, or to give the public a reasonable time after the completion of such unfinished volumes to obtain them under the favorable terms of the contract.
    Appeal by the defendant, A. Bleeclter Banks, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 2d day of June, 1893, upon the verdict of a jury rendered after a trial at the Albany Circuit, and also from an order entered in said clerk’s office on the 2d day of June, 1893, denying the defendant’s motjon for a new trial made upon the minutes.

      Bosendale da Hessberq for the appellant.

      Mills da Bridge for the respondent.
   MayhaM, P. J. :

This action was brought and prosécuted by the plaintiff to recover damages of the defendant for an alleged breach of a contract in writing, made and entered into between the defendant and the State of New York, represented by the State Reporter, Secretary of State and Comptroller, for publishing the reports of the decisions of the Court of Appeals for three years from December 14, 1877. The contract was made by virtue of the provisions of chapter 448 of Laws of 1876, as amended by chapter 422 of the Laws of 1877. (Code Civ. Proc. § 211.)

This section, after conferring upon these State officers the power and authority to make contracts for the publication of the reports of the opinions of the Court of Appeals, prescribing generally the kind of publication and the maximum price at which the volumes may be sold, contains this provision as to the terms of the contract: “ Each contract so entered into must provide for the publication of the reports for three years from the expiration of the time specified for that purpose in the last contract.”

The next section provides that neither the State Reporter or any other person shall obtain a copyright for the opinions contaihed in the reports, and the same may be published by any person.”

On the 12th day of December, 1877, the defendant entered into a contract with these State officers. The principal contention on this appeal is as to the liability of the defendant for a. failure to comply witli the demand of the plaintiff, made at the defendant’s law-book store in Albany, for the delivery to the plaintiff of certain volumes of the Court of Appeals Reports, published by the defendant under this .contract, the delivery of which was demanded by the agent of the plaintiff of defendant’s agent on ten different days between the 31st of July and the 12th of August, 1890.

Eor failure to comply with these demands the plaintiff recovers of the defendant $1,000, being the liquidated damage of $100 for each of the ten refusals. The provisions of this contract under which this recovery is sought to be upheld read as follows: “ The said party of the second part further agrees that he will, after publication of any volume of said reports, in pursuance of this contract, keep the same on hand for open and public sale, and will sell and deliver the same to any and all person or persons desiring to purchase, at and for the price of forty-eight cents per copy for each and every volume, at one or more of the regular law-book stores in the city of Albany, and also in one or more of the regular law-book, stores in the city óf New York, and that the same will be simultaneously placed on sale in each of said law-book stores, and also, that he will sell and supply at the designated book stores in Albany at the contract price to any and all other law-book sellers, such number of copies of each volume as they shall apply for, said party of the second part, however, not being required to deliver more than two hundred copies of any one volume to any one applicant or firm at one time, or within ten days after the delivery of that number of copies.”

The contract further provides that for a breach of any of the terms of the contract the defendant shall forfeit and pay to the People of the State the sum of $5,000, as stipulated and liquidated damages, to be recovered by the Attorney-General, or under his direction, and it further provides as follows: “ And it is further agreed that for any failure on the part of the party of the second part to keep on sale, furnish and deliver the aforesaid volumes or any of them at the price, and as hereinabove provided, the said party of the second part shall forfeit and pay for any and every such failure the sum of one hundred dollars, hereby fixed and agreed upon, not as a penalty, but as the liquidated damages suffered by the person or persons aggrieved thereby, the same to be sued for and recovered by the person or persons so aggrieved.”

It is insisted on the part of the defendant that the provisions of the contract above quoted are limited as to time, both by the statute under which the contract was authorized to be entered into, and by the terms of the contract itself, to the three years’ limitation in the contract, and that no obligation was imposed thereby after a lapse of more than nine years after the contract had expired by its own limitation.

The language of the provisions of the contract relied upon by the defendant to support his contention is as follows: “ That it is hereby agreed on the part of said parties of the first part that the said party of the second part shall have the publication of said reports for the term of three years from and after December 14, 1877, to be prepared, and as prepared by and under the direction of the State Eeporter. This contract, however, not to include volumes 67 & 68 of said reports now partly in print.”

The volumes of the reports demanded by the plaintiff, and for a failure to deliver which this action was brought, were Nos. 77, 78, 79 and 80, which were published by the defendant during the three years mentioned in the contract. It cannot be, and is not, contended that this contract authorized or permitted the defendant to publish the reports after the expiration of the three years’ limit fixed by that instrument.

But it is contended that the three years’ limitation related only to the time of publication and not to the time for which the defendant contracted to sell, and that the provision requiring him to keep the volumes published by him on sale was still operative and in force at the time of the demand of the books by the plaintiff. This is a question of vital importance in this case and one not easy of solution.

It reaches not only to forfeitures to individuals who are refused their books on demand, but if such refusal is a violation of the contract for which an individual action will lie the same violation would each authorize an action in behalf of the State by the Attorney-General to recover $5,000 forfeiture to the State in each case. If, therefore, the defendant in this case is liable to the plaintiff for ten violations of the contract, he would be, for the same reason, liable to ten forfeitures to tlie State of $5,000 each. If, however, this contract by a fair construction leads to such ruinous consequences it is not the province of the court to intervene to save a party from the result of improvident contracts or the serious consequences which may follow from their breach; but when the construction is doubtful and the real intention of the parties obscure, that fact may be taken into consideration in endeavoring to arrive at the meaning and intent of the contracting parties.

The State officers who were empowered by the Legislature to make this contract acted under special and limited authority conferred on them by the statute under which they were appointed and empowered to act. It expressly limited their power to contract to three years from the expiration of the time specified for that purpose in the last contract. Acting upon that authority, the contract made by these officers for this work, by its terms terminated on the 14th of December, 1877, three years from the time of its date. That contract was succeeded by the one in suit, dated on the 14th of December, 1877, the first recital in which was that the existing contract for the publication of the reports of the decisions of the Court of Appeals, known as the New York Reports, expired December 14, 1877, save as to two volumes then partly in print.”

This contract was succeeded by one made by the same officers, dated December 14, 1880, and starting with the following recital: “ Whereas, the existing contract for the publication of the reports of the decisions of the Court of Appeals, known as the New York Reports, expired December 14, 1880, save two volumes then partially in print,” etc.

Thus it will be seen that by the successive action of these State officers, they regarded their power to contract in any case as limited by the statute to three years, and at the end of that period, and on making a new contract for the next period of three years, they declare that the previous contract has expired.” Can it be successfully maintained that if the contract has expired, so that its obligations cease to bind one of the contracting parties, that the other party remains bound without any direct provisions extending its obligations to him ?

Both the State, through its officers, and the defendant seem to have treated this contract as having expired by its own limitations long before the plaintiff made this demand for the delivery of these books, the State by having entered into another contract for the same kind of work with Weed & Parsons, and the defendant by having disposed of all the volumes of these books made by him during the three years fixed in the contract as its limit of duration. But it is insisted that the contract was not by its terms limited to any precise time of duration, because when entered upon there was unfinished work by the previous contracto!’, and when terminated by the contract with Weed & Parsons, that contract recognized the existence of two rtnfinished volumes in the hands of the defendant for completion. It seems to be a sufficient answer to that position that the State officers were limited by the statute to a contract for not more than three years. But if the necessities of the case compelled them to recognize the unfinished work of each contractor at the expiration of the three years’ limitation in the contract, that necessity could not extend the contract indefinitely, beyond the time necessary to complete that unfinished work; the law of the contract would still confine its completion within reasonable limits, tested by the amount of unfinished work and the nature of the contract.

It would not annul all limits of time fixed by that instrument, and make the obligations perpetual, or extend them for a series of years.

The rule seems well settled that where the time of performance of a contract is not specified in terms therein, the law interprets the contract to demand performance within a reasonable time. ( Van Woert v. Albany & Susquehanna R. R. Co., 67 N. Y. 538; Wright v. Bank of the Metropolis, 110 id. 237; Colt v. Owens, 90 id. 368; Hedges v. Hudson R. R. R. Co., 49 id. 223.)

We are, on the whole, inclined to the opinion that the fair interpretation of this contractyequired the defendant to print, bind and keep' on hand, for sale under this contract, at his store, such books as the State Reporter provided him with the material to make, during the three years’ limitation in Ms contract, and for such reasonable time as was required to finish the books in process of completion after the expiration of such three years’ limit and dispose of them, or give the public a reasonable time to obtain them after completion of such unfinished volumes under the favorable terms of the contract.

It is quite apparent from the controversy growing out of this contract that there lurks in it an ambiguity which can be settled by judicious interpretation alone, probably by the court of last resort.

Called upon as we are to construe this instrument upon its ambiguous provisions, we should not, unless clearly justified by its provisions, give it an unreasonable interpretation, and such an one as will place one party entirely at the mercy of the other.

In Russell v. Allerton (108 N. Y. 288) it was held that when there is uncertainty or doubt as to the meaning of words or phrases used in a contract, in seeking for the intent of the parties as evidenced by the words used, the fact that a construction contended for would make the contract unreasonable, and place one of the parties entirely at the mercy of the other, may probably be taken into consideration. (Jugla v. Trouttet, 120 N. Y. 21-28; Wright v. Reusens, 133 id. 298-305.)

In this case the copyright of all matter received by the defendant from the reporter is prohibited to the State and defendant, and as we have seen section 212 of the Code throws the publication and sale of the volumes covered by the contract open to all, giving the defendant no exclusive privilege or monopoly of the same. It cannot, therefore, be claimed in this case that the time of the duration of this contract can be measured by the duration of a copyright, as the defendant cannot protect himself from competition in that way, and as the publication and sale of these books are open to all, the refusal of the publication by the defendant after the expiration of his contract cannot deprive the public of the privilege of purchasing the same of other book concerns.

~We are, therefore, led to the conclusion that the plaintiff had no legal right at the time of the demand of these books of the defendant to insist upon their delivery, and no cause of action accrued to him to demand and receive this forfeiture; and that the learned trial judge erred in not dismissing the complaint on the motion of the defendant.

The judgment must be reversed, and a new trial ordered, costs to abide the event.

Putnam and Hkrriok, JJ., concurred.

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


author: Herrick, J.:

text:
    In the Matter of the Application of L. J. Prescott and Others, Respondents, for the Removal of Richard Donovan, a Justice of the Peace (Appellant) from Office.

      Justice of the peace — jurisdiction of a county judge over proceedings for his removal.

      Á. county judge has no jurisdiction over proceedings to remove an individual from the office of justice of the peace. The General Term of the Supreme Court is the only court vested with such power.
    Appeal by the defendant, Richard Donovan, from an order of the County Court of Franklin county, entered in the office of the clerk of the county of Franklin on the 15th day of March, 1893, purporting to remove the defendant from the office of justice of the peace, with notice of an intention to bring up for review on such appeal the preliminary objections to such proceeding, raised before the county judge, and also the order entered in said clerk’s office on the 12th day of April, 1893, denying the defendant’s motion to vacate, quash and set aside the same.

      Wm. P. Gcmtwell, for the appellant.

      Jacob W. Webb, for the respondent.
   Herrick, J.:

This is an appeal from an order of the county judge of Franklin county removing Richard Donovan from the office of justice of the peace.

The proceeding before the county judge for the removal of said Donovan from office was founded upon section 35 of part 1, chapter 5, title 4, article 4 of the Revised Statutes (Birdseye’s Statutes 1770, §§ 283, 284). These provisions of the Revised Statutes were repealed by chapter 569 of the Laws of 1890. (See § 243, schedule of laws repealed.)

Section 18 of article 6 of the Constitution provides that justices of the peace may be removed from office by such courts as may be prescribed by law, and the Legislature by law prescribed the General Term of the Supreme Court as the court to be vested with such power (see § 132 of the Code of Criminal Procedure), and it is the only court that the Legislature has vested with such power.'

Tbe county judge bad, therefore, no jurisdiction over the proceedings to remove said Donovan from the office of justice of the peace, and the order appealed from should, therefore, be reversed, with the costs, printing and other disbursements of this appeal, and of the proceedings before the county judge.

Mayham, P. J., and PutNam, J., concurred.

Order reversed, with costs and printing and other disbursements upon this appeal, and the costs of proceedings before the county judge.