text:
    Julia O. Ludington, Respondent, v. George B. Garlock, Appellant.
   Judgment of the County Court of Onondaga reversed, and that of the justice’s Court affirmed, with costs.

Opinion by

Merwin, J.


source: Caselaw Access Project

author: Merwin, J. Hardin, P. J.

license: Public Domain

text:
    Silas Graves, Appellant, v. Lula Graves and others, Respondents.
   Judgment reversed on the exceptions and a new trial ordered, with costs of the action to abide the event

Opinion by

Merwin, J.

Mem. by

Hardin, P. J.


author: Martin, J.

text:
    Thomas J. Larkin, Respondent, v. William C. Taber, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Martin, J.


author: Merwin, J.

text:
    John E. Strickland and others, Respondents, v. Ruth H. Laraway and others, Appellants.
   Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event.

Opinion by

Merwin, J.


text:
    Abram M. DeWitt and another, Respondents, v. The Elmira Transfer Railway Company, Appellant.
   — Interlocutory judgment reversed, with costs, and judgment ordered for the defendant upon the demurrer, with costs, with leave to the plaintiffs to amend their complaint upon payment of the costs of the demurrer and of this appeal.

Opinion by

Merwin, J.


author: Hardin, P. J.

text:
    The People of the State of New York ex rel. Henry W. Stevens, Respondent, v. John Barden, as Mayor of the City of Ithaca, Appellant
   — Order reversed, with ten dollars costs and disbursements, and motion denied.

Memorandum by

Hardin, P. J.


text:
    Simon D. Paddock, Appellant, v. Patrick Guyder, Respondent.
   Order reversed, with t-m dollars costs and disbursements, and leave given to the defendant to answer in twenty days upon payment of ten dollars costs of the motion, and the costs and disbursements allowed on appeal.

Opinion by

Hardin, P. J.


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

text:
    Emma E. Dryer, Respondent, v. Elon G. Brown, as Surviving Executor, etc, Appellant.
   Order modified by striking therefrom all provisions as to an amended answer and payment of costs as a condition of serving the same, and by inserting m the order a provision vacating the stipulations as to pleadings and striking out the pleadings had under the stipulation, and as so modified, affirmed, without costs to either party of the motion or upon this appeal

Opinion by

Hardin. P. J.

Memorandum by

Martin, J,;

Merwin, J., not voting.


text:
    William O. Allison, Respondent, v. Harvey N. Loomis and others, Appellants, Impleaded, etc.
   Judgment reversea on the exceptions anaj a new trial ordered before another referee, with costs to abide event.

Opinion by

Merwin, J.


text:
    Albert O. Briggs, Respondent, v. Harvey Austin, Appellant, Impleaded, etc.
   judgment reversed on the exceptions and a new trial ordered, with costs to abide the event.

Opinion by

Hardin, P. J.


text:
    James M. Tator, Appellant, v. Charlotte M. Tator, Respondent Impleaded, etc.
   — Judgment affirmed, with costs.

Opinion by

Martin, J.


text:
    Margaret Wheeler, Respondent, v. The Continental Insurance Company, Appellant.
   Judgment affirmed,' with costs.

Opinion by

Merwin, J.


author: Hardin, P J.

text:
    Ira Dwight, Respondent, v. The Elmira, Cortland and Northern Railroad Company, Appellant.
   — Case sent back for such action or proceeding as counsel may deem advisable.

Memorandum by

Hardin, P J.


text:
    Isaac G. Jenkins, as Receiver of the Firm of Bond & Jenkins, v. Stephen Lefaiver, Respondent, and Ozro M. Bond, Appellant.
   — Judgment affirmed, with costs.

Opinion by

Martin, J.


text:
    Joshua L. Wadley, Respondent, v. Jacob S. Poucher and Willard Johnson, Appellants.
   Judgment affirmed., with costs.

Opinion by

Merwin, J.


text:
    The People of the State of New York, Respondent, v. Daniel Upton, Appellant.
   Judgment of the Court of Sessions of Tompkins county affirmed, and the clerk directed to enter judgment and remit certified copy thereof, with the return and decision of this coui-t to the Court of Sessions of Tompkins county, pursuant to sections 547 and 548 of the Code of Criminal Procedure.

Opinion by

Hardin, P. J.


text:
    Eliza W. Brown, Appellant, v. Louisa Danforth, Esther Sanborn, David Wheeler and others.
   Judgment reversed on the exceptions and a new trial ordered before another referee, with costs to abide event.

Opinion by

Martin, J.


text:
    Patrick Phillips, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company, Appellant.
   Judgment affirmed, vith costs.

Opinion by

Hardin, P. J.


text:
    Jane R. Pullman, Respondent, v. Caroline Johnson, Appellant.
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    Hannah L. Smith, Respondent, v. John Bingham, Appellant
   — Judgment of the County Court of Otsego county, affirmed, with costs.

Opinion by

Merwin, J.


text:
    Jedediah Hoose, Appellant, v. Solomon S. Alexander, Respondent.
   Order reversed, with printing disbursements and motion denied, with ten dollars costs.


text:
    Charles B. Preston, Appellant, v. Solomon S. Alexander, Respondent.
   Omer reversed, with printing disbursements and motion denied, with ten dollars costs,


text:
    Linus B. Cobb, Appellant, v. Solomon S. Alexander, Respondent.
   Order reversed and attachment amended so that it shall stand for the debt of $420 only and costs, and the motion in other respects denied, without costs.


text:
    L. M. Cole, as Administratrix, etc., Appellant, v. Solomon S. Alexander, Respondent.
   Order reversed, with printing disbursements, and motion denied, with ten dollars costs.


text:
    Henry Humphries, Resnondent, v. Solomon S. Alexander, Appellant.
   Order modified so as to allow the attachment to be amended so that it may stand for $116.85 debt and costs, and as modified affirmed, without costs to either party of the appeal.


text:
    Adelia Blakeslee, Appellant, v. Solomon S. Alexander, Respondent.
   Order reversed and attachment amended so that it shall stand for the debt of $167.54 and costs, and the motion in other respects denied.


text:
    Eliza A. Cone, Appellant, v. Solomon S. Alexander, Respondent.
   Order reversed with printing disbursements and motion denied, with ten dollars costs.


text:
    Martin Barney, Appellant, v. Lewis E. Fuller and another, Respondents
   — Order affirmed, with ten dollars costs and disbursements.


text:
    People ex rel. Horace E. Taylor, Respondent, v. Albert S. Potts, Appellant.
   Motion to dismiss denied. Order reversed, with ten dollars costs and disbursements.


text:
    Charles J. Rumsey and another, Respondents, v. Ann McCarthy, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Charles W. Bardeen, Respondent, v. Jerome Allen and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Frank B. Chapman, Respondent, v. Lucius Gleason, Appellant, Impleaded with Patrick Lynch.
   — Order affirmed, without costs.


text:
    In the Matter of the Application to disbar William Youmans.
   — Proceedings dismissed uuless report of the referee be procured and filed with the clerk of Onondaga county during the next term of this court, and it is further ordered that the notice of motion and affidavit accompanying the same, and the affidavit of C. H. Bell in opposition thereto, presented at this term of court, be transmitted to the clerk of Onondaga county.


text:
    Elizabeth H. Butler, Appellant, v. The City of Oswego and another, Respondents.
   — Motion for reargument denied.


text:
    The People of The State of New York, Appellant, v. John Snaith and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People of The State of New York, Respondent, v. Palmer M. Wood, Appellant.
   — Order settled and filed with the clerk of Oneida.

Hardin, P. J, not voting.


text:
    John Mitchell, as Executor, Respondent, v. David H. Knapp, Appellant, Impleaded.
   Order settled and filed with the clerk of Oneida county.

Martin. J., not sitting.


text:
    Henry C. Ballon, Executor, Respondent, v. Thomas Carton and others, Appellants.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Erastus Z. Wright, Receiver, etc., Respondent, v. Charles T. Segar, Appellant.
   Motion granted, with ten dollars costs, and judgment affirmed with twenty dollars costs of the appeal and disbursements.


text:
    John A. Morgan, Respondent, v. William Wilsey, Appellant
   — Judgment and order of the County Court of Oneida county affirmed, with costs.


text:
    Allison Parks, Appellant, v. James Boyce, Respondent.
   — Judgment of the Madison County Court reversed and that of the Justice’s Court affirmed, with costs.


text:
    William W. Gilmore, Respondent, v. Edward E. Ham and Sarah E. Ham, Appellants, Impleaded, etc.
   — Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


author:
Learned, P. J. :
      Fish, J.: Landon, J,:

text:
    DAVID FORSYTH, Respondent, v. JAMES McKINNEY and EDWARD N. McKINNEY, Appellants.

      Master and servant — violation of the rules of the shop by the servant — if intentional the jury is not to decide whether the violation was sufficient to justify the servant’s discharge — insolent conduct on the part of the servant.

    In an action to recover damages for the alleged illegal discharge of the plaintiff from the defendants’ employ, the defendants requested the court to charge: “ If the plaintiff violated the rules of the shop of McKinney & Son, McKinney had the right to discharge him from his employment.” The court qualified this by saying, “If the violation was of that character as to amount to a sufficient justification.”
    It appeared that certain rules were adopted in the shop of McKinney & Son; that there was a card, “ No Smoking Allowed,” posted therein; that the plaintiff did smoke and violated the rule in working hours; that when remonstrated with by the foreman he went out of the shop and finished his cigar.

      Held, that it was the right of the employer to establish rules, and that if they were broken by an employee he could not compel his employer to perform his part of the contract of employment.
    That the qualification which the court added to the request to charge, left it to the jury to say whether the violation of the rule was sufficient to justify the defendants in discharging the plaintiff; that while an unintentional or accidental violation of the rule might not be held to be within its fair meaning, yet where it appeared that the employee must have known that he was violating the rule, the employers were entitled to have the jury charged by the court as they had requested.

      The defendants also requested the court to charge that if the plaintiff acted insolently to the foreman while engaged in his employment, the defendants had a right to discharge him. The coui't left it to the jury to say whether the insolence was sufficient.

      Held, that it is never the duty of an employer to retain an employee who acts insolently to one who represents the employer; that insolent conduct towards an employer, or towards one who represents him, is a breach of the duty owing by the employee; certainly where no provocation has been given therefor.
    That the court erred in qualifying, as it did, the requests to charge made by the .defendants.
    Appeal by the defendants from a judgment, entered in the office of the clerk of the county of Albany on the 19th day of January, 1889, in favor of the plaintiff, after a trial at the Albany Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $36é.26; and also from an order denying defendants’ motion for a new trial, entered in said, clerk’s office on January 21, 1889.

      Marcus T. Hun, for the appellant.

      T. J. Van Alstyne, for the respondent.
   Learned, P. J. :

This action is brought to recover damages for breach of an alleged contract between the parties. The plaintiff claims that by that contract be agreed to work for defendants for one year from the 19th day of September, 1885, at the rate of two dollars and seventy-five cents per day ; that under this contract he proceeded to work till the thirtieth day of October in that year, when be was wrongfully discharged by defendants.

The claim of the plaintiff to establish this contract is, that about September 19, 1881, lie contracted with defendants (or with one of them then carrying on the business) to work for them for one year at that price; that after that year was ended be continued to work with said defendants (or that one of them) until the time of his discharge. He claims, therefore, that his continuing to work for them after the end of each year formed a new contract to continue-also for a year.

The learned justice who tried the case, as we understand, took this view of the law, and we cannot see that the defendants excepted to it in any way. "While, therefore, we are not prepared to hold that view correct, we feel precluded from examining it, inasmuch as it seems to have been accepted on the trial as correct by the defendants, although they argue against it in their points.

The defendants further claim that the original contract was made solely with James McKinney, and that Edward N. McKinney was not then a partner, but became such subsequently. No point, however, seems to have been made as to this on the trial. It would be a fair presumption for the jury to infer that when Edward N. McKinney became a member of the firm he accepted all existing contracts.

The remaining question relates to the plaintiff’s discharge. The defendants claim that he was discharged for improper conduct and disobedience to the rules of the shop.

It was claimed by defendants that plaintiff disobeyed the rules ■of the shop, and, also, that he was insolent to the foreman. The defendant asked the court to charge: “ If the plaintiff violated the rules of the shop of McKinney & Son, McKinney had the right to discharge him from his employment.” The court qualified this by saying, If the violation was' of that character as to amount to a sufficient justification.”

Now, in understanding this request of defendants, we must notice. that the plaintiff had testified that there were certain rules adopted in the shop ; that there was a card — No smoking allowed ; ” that he did smoke and violated the rule in working hours; that when remonstrated with by the foreman he went out of the shop and finished his cigar. '

It is the right of the employer to establish rules. If a workman on seeing these rules is dissatisfied with them, he need not accept the employment. If he accepts it, however, he must obey the rules. If he disobeys the rules, he breaks his part of the contract, because it is a part of his contract to obey them. The plaintiff in this case is not suing to recover for work which he has performed. He is suing for a breach of the alleged contract to employ him for a year. He must then show that he has performed his part of the contract. If he has broken his side, he cannot compel the defendants to keep theirs, or recover damages if they do not continue to observe a contract which he has broken. The qualification which the learned justice added left it to the jury to say whether the violation was sufficient to justify the defendants. Perhaps an unintentional or accidental violation of a rule might be held not to be within the fair-meaning of the rule itself. But no such question was in the case. The plaintiff must have known he was violating the rule. He did not even lay aside his cigar when the foreman spoke to him. But he went out of the shop in working hours to finish his cigar; thus, evidently, adding another fault to that which he had committed. We think the defendants were entitled to the charge they asked.

They also requested the court to charge that if the plaintiff acted insolently to the foreman while engaged in his employment defendants had a right to discharge him. The learned justice left it to the jury to say whether the insolence was sufficient. Perhaps, on the testimony, it might have been a question whether or not plaintiff did act insolently: although we should think there could be little doubt of that. But if he did act insolently he broke another part of his contract, a part as binding as if it had been expressed. It certainly can never be the-duty of an employer to retain an employee who acts insolently tO' one who represents the employer. We do not mean by this that the-foreman himself has any right to act insolently to an employee. Nothing of that kind occurred in this case. But we do mean that insolent conduct towards an employer or towards one who represents him is a breach of the duty which the employee owes ■ — ■ at least where the employer or he who represents him has given no provocation. Where provocation has been given, then, probably, the circumstances should be left' to the jury to say whether the provocation justified or excused the insolence. And the employee cannot justly complain if for that reason the employer puts an end on his. part to the employment.

The court, we think, by these qualifications to the defendants’' request, left it to the jury to say how much the plaintiff might break the contract on his part and yet hold the defendants to its performance. This, we think, was incorrect; since the party who breaks a contract himself cannot, as a general rule, have damages against the other party for a subsequent failure to perform, based on such breach.

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

Fish, J.:

While concurring in the opinion of Justice Learned and in the result he arrives at, it seems fit to add that the evidence is .sufficiently clear, that the plaintiff violated a substantial regulation of the defendants’ shop, and that he was insolent and offensive towards Myers, the defendants’ foreman, to justify his discharge by defendants, -and so that it might well be held, as matter of law, that the recovery was wrong, a direction to the jury to find a verdict for defendants would have been proper.

Landon, J,:

The refusal to charge, as requested, implied that the master ought to bear with some insolence from his servant. This will not do, unless the master has given his servant provocation. If he has, then I think the circumstances may be left to the jury to determine whether the provocation justified or excused the servant With this -qualification, or rather addition to the above opinion, I concur in it.

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


author: Learned, P. J.: Landon, J.: Fish, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GEORGE DOWNS, Appellant.

      Manslaughter — confession thereof does not raise a presumption of murder — conmction by a jury of a less degree of a crime, because of doubt as to the commission of the higher degree.

    •On the trial of a prisoner, indicted for murder and convicted of manslaughter in the first degree, it appeared that the prisoner, between eleven and twelve o’clock at night, went to the house of an acquaintance and told him that some one had been shot at his (the prisoner’s) house, and said that he had shot a man; that he had shot his best friend, and inquired what he had better do. When advised to notify the authorities, he said that was proper and that he would remain in the building until it was done, which he did.

      Held, that the statement made by the prisoner, that he had shot his best friend, was as consistent with an accidental as with an intentional shooting, and that it did not impose upon the prisoner the obligation to show some excuse or justification therefor.
    That the court erred in refusing to charge that there was no legal implication, from the fact of the shooting, that the defendant intended to take the life of the deceased.

      That it was for the people to prove not only the killing, but also all the other elements which went to make up the crime of murder, and that it could not be assumed, in the absence of excuse shown therefor, that the homicide was a private executing of the law or of vengeance.
    A jury has no right to convict a man of a less degree of a crime, simply because it doubts whether he committed a greater degree, but the elements which constitute such degree must be themselves proved.
    Appeal by the defendant from a judgment entered in the office of the clerk of the county of Rensselaer on the 6th day of June, 18S9, after a conviction of manslaughter in the first degree, under an indictment for murder tried at the Court of Oyer and Terminer of Rensselaer county.

      Orin Campbell, J. K. Long and Thomas 8. Fagan, for the appellant.

      L. F. Griffith, for the respondent.
   Learned, P. J.:

The defendant, indicted for murder, was convicted of manslaughter in the first degree for the killing of one James Logan. '

When the people rested the following facts had been proved. The defendant, between eleven and twelve oil the night of December fifth, went to the house of one Morey, an acquaintance, told him that some one had been shot at his (defendant’s) house and asked Morey to go there with him. Defendant also said that he shot the man, and that he had shot his best friend. Defendant then went, for Dr. Iiarvie, who lived near; told the doctor that there was a man at his place who was dying and asked the doctor to go there with him. Defendant went away, but soon came back and wanted the doctor to-hurry, and then said he was afraid he had killed his best friend. The doctor and defendant went, and on their way they joined Morey. All of them proceeded to Downs’ house. They found Logan lying-dead outside of the building, in the rear, and near the staircase-which led to the second story. He had been killed by a bullet. Defendant -was pale and sick and asked the doctor what he would better do. The doctor advised him to notify the authorities. He said that was proper, and he would remain in the building till the-doctor had done this. He remained there till the coroner came, an hour or two afterwards. To the coroner he said he had shot his best friend, and he did not know why. Logan was a strong athletic man. At the time he was shot he had on a heavy overcoat, a thick undercoat, vest, shirt and pantaloons. The bullet passed through the overcoat, undercoat, vest, shirt and suspenders. After defendant had been taken to the jail he said he did not know where the pistol was, that he probably threw it on the floor. It was afterwards found under the bureau. Defendant kept a saloon, and he and the deceased had been friendly and intimate. Deceased had often been in the saloon, and he was in the saloon that evening about half past ten. Mrs. Downs was waiting on the bar; no one else was there at that time. On the overcoat, near the bullet-hole, there were no marks of the burning of powder. The wound was an inch to the right of the right nipple. There were no other marks of violence.

These are substantially all the facts tending to show defendant’s guilt which had been proved when the people rested. It will be seen that the statement made by the defendant that he had shot Logan, or had shot his best friend, is as consistent with an accidental, as with an intentional, shooting. And, furthermore, that there was no attempt on defendant’s part to conceal the act. For he at once notified Morey and the doctor. And Logan had been dead but a few minutes when they arrived. If flight or concealment is evidencS of guilt, then the contrary should be some indication of innocence.

Now, in Stokes v. People (53 N. Y., 164), it was held that mere proof that one has been deprived of life by the act of another utterly fails to show the class of the homicide under the statute; that it was error to charge that, the fact of the killing being conceded, the law implied malice from the circumstances of the case, unless the prisoner satisfied the jury that the killing was justifiable. In the present case nothing had been shown as to the circumstances of the killing when the prosecution rested.

In the case of People v. Beckwith (108 N. Y., 68), where a homicide was committed in the defendant’s house privately, the court commented on previous threats of the prisoner, on the second murderous blow with a knife, on the concealment and mutilation of the remains, on the flight of the prisoner and his falsehood as to the acts of concealment, as evidence of premeditation and of malice. Nothing of that kind exists in this case.

The defendant then testified in his own behalf. In brief, his testimony was that he had gone to bed about eight o’clock; went to sleep ; waked at half-past eleven; saw his wife at the table taking supper; that she then prepared for bed; that he asked her if she had locked the back door; in response to this inquiry he heard her go and open the back-door from the sitting-room to the kitchen; when she got there he heard a strange rustling noise ; he got up, took his revolver, and pulled the cock; when he got to the kitchen-door he found his wife and the deceased on the floor in the act of carnal connection. He testified that he pulled Logan off; that Logan collared him and began to fight him and knocked his head ; that he went dizzy and the pistol went off; that he did not know it was going to explode; that Logan fell; that the prisoner looked for his wife but she had gone; that he went to the bed-room and put on his pantaloons; then went to Logan and found him struggling to get up; that he lifted him and got him to the top of the steps to get air and both went down the steps; that Logan then lay down and the prisoner xhen saw blood on his shirt, and dressed and ran for IVIorey and the doctor.

The testimony of the wife is in harmony with this. She says as soon as she got into the kitchen some one took hold of her and threw her down; that Logan was on the floor with her; afterwards Logan and the defendant seemed to be fighting.

It appeared by the rebutting testimony of the prosecution that, on the examination before the coroner, she answered that she did not know to nearly every question put to her touching the matter. She further testified on the trial that Logan had never insulted her or made improper advances to her; evidently meaning before this occurrence.

There is not, that we discover, any other evidence tending to show what was the nature of the transaction by which Logan lost his life. There was no previous animosity shown, but, on the contrary, friendship, and no preparation for the act. The prisoner testified that he had had the pistol twelve months; had never loaded or fired it; never cocked or snapped it; did not know the workings; had always kept it on a little stand by the bed.

The case seems to have been tried upon the theory that the prosecution had shown an intentional killing of Logan by the prisoner, and that it was for the prisoner to show some excuse or justification; as, for instance, defense of his wife’s chastity. While, in fact, the ■defendant’s testimony shows misadventure; and the prosecution .showed nothing as to the circumstances surrounding the killing.

It was to this that the defendant’s counsel had reference when he requested the court to charge that there is no legal implication from the fact of the shooting that the defendant intended to take the life •of Logan. The prosecution insists that the refusal so to charge was ■correct. They urge that the defendant is presumed to have intended the natural consequences of his act. That maxim in its breadth is not correct. In Thomas v. People (67 N. Y., 225), the prisoner had sharpened a knife and with it struck a blow at a vital part of the body. He must have foreseen the actual consequences ■of his act and, therefore, must be presumed to have intended them. .It is only such consequences as the circumstances show that the party must have foreseen which he is presumed to have intended. When an act produces consequences, however natural, which the .actor could not have been supposed to foresee, he is not presumed to have intended them.

Now, in this case the mere fact of killing, without evidence as to attendant circumstances, or preceding or subsequent circumstances throwing light on it, does not create an implication that defendant intended to take Logan’s life. The mere fact of killing proves homicide, but it does not prove whether the homicide is a crime or is justifiable or excusable.

Another part of the charge is as follows: “ Here has been a .homicide; here has been a human life taken. It becomes a serious question as to whether or not a man shall execute the law or execute vengeance upon his fellow. If he does it he must do it at the peril •of either being punished for it or being able to excuse himself when called upon to answer to the wrong, within one of the excuses that is fixed and given in the law. If he is not, he must be found guilty of ■one or the other of the crimes which are imputed to him by reason ■of the homicide.” This was excepted to.

It seems to us that the same error exists here. It is that of .assuming that homicide is a crime, or that homicide is a private executing of the law or of vengeance. It is for the people to prove not only the killing but also all other elements which make the-crime, and not to assume that a homicide is a private executing of the law or of vengeance, unless excuse is shown. (People v. Willett, 36 Hun, 500; People v. Hill, 49 id., 432.)

There are some cases cited by the prosecution, such as People v. Schryver (42 N. Y., 9), where it is said that the homicide being-proved, it is for the prisoner to satisfy the jury of his excuse or justification. But on looking at these cases it will be found that the-proof of the homicide included proof prima facie of a malicious-killing. There are some expressions in text-books also to this effect. (4 Bl. Com., 201.) But they are not in harmony with the doctrine of the Stokes Case and of other subsequent decisions.

It is undoubtedly true that the jury were not bound to believe-the defendant’s testimony or that of his wife. But the rejection of' the whole or of part of that testimony does not supply the want, of proof or justify a mere guessing at the facts without evidence. If' the evidence of the defendant and of his wife is rejected, then there is no evidence as to the circumstances under which Logan lost, his life. The learned justice took that view, because he charged that the jury could not find a fact to be established, without evidence, against the sworn statement of the defendant and liis wife, even though they were interested witnesses. But the only kind of manslaughter in the first degree of which defendant could be convicted is homicide in the heat of passion by means of a dangerous-weapon. Yet, if the testimony of defendant and his wife are rejected, there is no evidence tending to show this. If accepted, there-was misadventure. If part only is accepted, it is not justifiable to-make out the rest of the elements of the crime from mere conjecture.

The jury, in finding defendant guilty of manslaughter in the first, degree, must have repudiated the theory that defendant took Logan’s life in defense of his wife’s chastity or in a temporary insanity caused by the sight of her unfaithfulness. They must have found that he took Logan’s life in the heat of passion without-intent to kill. When we examine the evidence tending to sustain this degree of crime -we find it quite defective. There is no evidence of defendant’s heat of passion. If his own statement is true,, then he was attacked by Logan and became dizzy from a blow on the head, and did not intentionally discharge the pistol. The wife’s-testimony adds nothing to the contrary. She speaks of the parties-fighting, but that is the very expression which defendant used to-describe the attack upon himself, saying that Logan “ started to-fight me and I went dizzy.” If we reject the testimony of both, then we have no account of the- occurrence; and, of course, it is-not right to convict a man of a less degree of crime, simply because-a jury doubt whether he committed the greater. Manslaughter is-not half-proved murder, but the elements which constitute that less-degree must be themselves proved.

The defendant’s counsel urges that there was error in the charge-as respects justifiable homicide. But the request of the defendant’s counsel omitted one important clause in the definition of justifiable-homicide (Penal Code, § 205); that is, that it was committed “in lawful defense ” of the wife. That means in defending her against, the danger of a felony or of great personal injury. Nothing in this-case shows defense against an injury. The injury had been done before-, the homicide, and further attack on her was not to ’be apprehended..

We are, however, of the opinion that there were errors in the; charge prejudicial to defendant as above pointed out. And we are-further of the opinion that the evidence does not sustain the conviction. On the law and on the facts there must be a new trial.

Landon, J.:

I concur in reversal, because I think there was error in the ruling-that the defendant must- satisfy the jury that some one of his defenses was true. If the jury had a reasonable doubt as to the truth of any one of them, the defendant was entitled to an acquittal.. (Code Grim. Pro., § 389.) For in such case there would be a. “ reasonable doubt whether his guilt is satisfactorily shown.” But upon the facts, if there were no errors of law, I should sustain the-conviction, the evidence being ample to justify the finding that the-defendant shot and killed Logan because he discovered him and his. (defendant’s) wife in the act of adultery.

Fish, J.:

I concur in result with the qualifications suggested by Justice-Landon, not willing to say that on the merits the evidence does not. sustain the conviction.

Judgment reversed and new trial granted on questions of law.


author: Learned, P. J. : Landon, J.: Fish, J.

text:
    SUSAN K. GRISWOLD, Respondent, v. ALLEN C. SAWYER and Another, as Administrators, etc., Appellants.

      ■"Legal representatives”- — -as used in a policy of life insurance, refers to executors and administrators.

    In an action brought to determine whether the proceeds of a policy of insurance, upon the life of one Alfred H. Griswold, deceased, should be paid to his widow and children or to his administrators, it appeared by the policy that the insurance company insured “the life of Alfred II. Griswold in the sum of $2,458, the said sum insured to be paid at the office of this company, in Hartford, Connecticut, to his..........legal representatives,” the word “his” being in writing and two blank lines following it.

      Jleld, that there was nothing to take the words “ legal representatives ” out of their ordinary meaning; that they should receive their natural and obvious meaning, and should be held to intend the executors or administrators of the assured. (Fish, J., dissenting.)
    Appeal by the defendants, the administrators of Alfred H. Gris-wold, deceased, from a judgment entered, in the above-entitled .action, in the office of the clerk of Washington county on the '7th day of October, 1889.
    The judgment was entered upon the report of a referee, whereby it was decided that after deducting certain costs and disbursements the plaintiff and the defendants, Ilenry C. Griswold, Laura B. Gris-wold, Mary Jane Bowen, Elizabeth Bascom and John B, Griswold, were each entitled to receive one-eiglith, and the defendant Gustavus A. Griswold to receive one-quarter of the amount payable under a policy of insurance upon the life of Alfred H. Griswold issued by the Connecticut Mutual Life Insurance Company.
    The action was brought to determine whether the proceeds of a policy of insurance upon the life of Alfred H. Griswold, deceased, .should be paid to his widow and children or to his administrators.
    The action was brought by the plaintiff, who is the widow of the insured, against the Connecticut Mutual Life Insurance Company, the company which issued the policy; the children of the deceased .and his administrators were also made parties defendants. The insurance company paid the proceeds of the policy, $2,453, into •court, and thereupon an older was made discontinuing the action as ■to it, and continuing it as to the other parties. It appeared upon the trial that Alfred H. Griswold, prior to July 25, 1879, the date-of the policy, was a- man of large wealth and business interests; that-he was then carrying about $25,000 of insurance upon his life that he failed in business and was insolvent; that about the date in question he surrendered his various life policies and received in their stead “ paid-up ” policies, of which the policy in question was one. He died December 4, 1888, aged upwards of eighty years, intestate and insolvent, owing debts to the amount of upwards of $100,000,. leaving the plaintiff, his widow, and seven children surviving him, all of whom are of full age, and with his administrators are the-defendants in this action.
    The policy in question recites that: The insurance company “ insure-the life of Alfred H. Griswold * * * in the sum of $2,453, the-said sum insured to be paid at the office of this company, in Hartford, Conn., to his........legal representatives.” The word “ his is in writing, two blank lines follow it; the other words quoted,, except the name and sum, are printed.
    The referee found that the widow and seven children were entitled to the proceeds of the policy, each to take one-eighth thereof, except-the defendant Gustavus A. Griswold, who, having acquired the-interest of William A. Griswold, took one quarter. The finding in favor of the widow was in pursuance of a concession to that effect by the children. The administrators appealed.

      Otis A. Dennis, for the appellants.

      Charles O. Davis and J. 8. Potter, for the respondents.
   Learned, P. J. :

This is a case in which the sympathy of the court must be in favor of the widow and children. But we ought not to be influenced by sympathy or to give the amount to them because they need it and because it will be a small sum to distribute among all the creditors. The simple question is: What does the contract of insurance mean ?

In the very brief testimony given it is not stated to whom was payable the old policy which was surrendered in 1879, when the present policy was issued. But, under the decision in Whitehead v. New York Life Insurance Company (102 N. Y., 143), we may infer that that was not payable to wife or children. If it had been,, the insured, could not have surrendered it; and, without doubt, in that case the new would, in its language, have followed that of the old.

There are no circumstances which can aid in the construction of ■the policy, except the fact that at the time when it was issued the insured, who had previously been a man of large means, had become insolvent and had lost his property, and that large judgments had been recovered against him. Whether those judgments had since been paid, and what was his pecuniary condition at his death in 1889, do not appear. And even the fact of insolvency in 1879 is not found by the referee. The referee finds no extraneous facts on which to base his construction of the instrument. He finds nothing ■even as to the intention of the assured; which, the respondents .assert, was to benefit his wife and children. On the other hand, the .appellant intimates that the assured had paid off his debts. It is ■quite doubtful whether his pecuniary condition throws much light on the terms of the policy.

There can be no doubt that the ordinary meaning of the words “legal representatives” of a deceased person is his executors or administrators, as the case may be. It is true that the context of a written instrument may sometimes require a different meaning. Nothing in the context here requires anything but the ordinary meaning.

Nor is there anything in the circumstances which shows that the deceased and the company had any other meaning in view. 'The policy was not issued in anticipation of approaching death. The insured lived some nine years after. There is no reason to think that he intended to deprive himself of the power of transferring and disposing of the policy. Iiis embarassed financial condition might naturally make him desire to have some control over this contract, so that, if occasion required, he might use it. He might have expected to get free from his debts. He might also have preferred that the amount secured should, at his death, be used to pay his ■debts, if any remained, rather than it should go to his next of kin ; wishing to be just before he was generous.

There is another consideration which might have deterred the insured from making this policy payable to his wife; and that is the restriction of chapter 277, Laws of 1870. (Masten v. Amerman, 20 Abb. N. C., 443.) The insured had had policies amounting to '$25,000, and the yearly premiums may very possibly have exceeded .$500. I see, then, nothing to take the words in question out of their ■ordinary meaning. And the ordinary meaning should prevail when "there is no need of any other. The natural and obvious meaning should be taken. (McCluskey v. Cromwell, 11 N. Y., 593.)

An examination of the contract itself strengthens this view. It was a printed form. The printed words “legal representatives” followed a blank space evidently left for the name of the beneficiary. In this blank space was written the word “his” and the rest of the space was filled with red lines. Had the wife or children been intended, their names or designation would have been inserted in this blank space. In the case of Drake v. Pell (3 Edw. Ch. 270), ■a will gave property to a cnild of the testator, and if the child died .after twenty-one, then to “ the heirs, devisees or legal representatives ■of the child.” The court held that “legal representatives” there meant next of kin, who were to take the child’s share of the personal ■estate, and who would take directly, and not through executors of the child. The context and connection made this plain. Greenwood v. Holbrook (111 N. Y., 465), was the construction of a written agreement made on settlement of a controversy over a will. The widow contracted to pay during widowhood a certain part of the income of the estate to each child, and in case of the child dying, to its “ legal representatives.” A child died and bequeathed her interest to her husband, making him executor. The brothers of the child (who left no issue) claimed the income against the husband. The court said there would have been no occasion to add the words “ legal representatives,” because a contract to pay would have passed to the executor. And they held the brothers to be entitled as next of kin; keeping in mind the original provisions of the will.

• In both of these cases it will be seen that there was to be a payment to a child of the person from whom the property came, and, in case of death, to the legal representatives of such child. Thus the gift after the death of the child was like a remainder over, which would go to some remainderman and would not be a part of the child’s estate. The present case bears no analogy.

But we may test this question in another way. Can there be the least doubt that the insured, during his lifetime, could have assigned or surrendered this policy % If so, he was the absolute owner, and no one but himself had any interest in it as beneficiary. Thus it became part of his estate at his death. If, on the other hand, as the respondents claim, the words “legal representatives” now mean children (and it does not seem to be asserted that they include the wife) (Tillman v. Davis, 95 N. Y., 17, 25), then they had that meaning during the lifetime of the assured, and the company would have been bound to know that the policy was payable to the children. (See Whitehead Case, ut supra.)

We must give the policy the meaning which it had when it was-executed. The payees were designated at that time. If executors and administrators were not intended, were the next of kin intended, whoever they might be? Then the policy was not solely for descendants. Were children intended? But unless they survived him, they would not be his representatives. It does not seem to me that the company would have had any reason to think that the assured was not the owner of the interest in the policy.

It may be that men often take out policies on their lives for the benefit of their families. But this is not the universal case. Men who have no families take out policies. Others take out policies as investments. If this decision is to stand, then if a man is insolvent and has children, the words executors and administrators on his policy will also have to be construed to mean “ next of kin.”

Of course, I do not say that the words “ legal representatives ” can never mean next of kin or heirs. When the context requires, or where the situation of the estate compels, then, of course, courts may give to the words a meaning thus made necessary. But there must be something more than a guess as to the probable wishes of the party to the contract, when those supposed wishes could have been made unquestionable by three words.

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

Landon, J.:

I concur in the opinion of the presiding justice. If the action were between the administrators and the company, I think it would have to be held that the facts urged in behalf of the children of the insured constitute no defense. On the face of the policy the administrators have the better right, and the most that can be said against it is that possibly the insured did mean the policy to be for the benefit of his children and not of his estate. A prima facie case cannot be overcome by mere conjecture.

Fish, J.

(dissenting):

The assured was a husband and father. It can scarcely be doubted that, in procuring the insurance upon his life to take effect upon his death, he had in view the making pro vision for his wife and children. Unless he was an unnatural husband and father such was his intent. It is almost a self-evident proposition.

His intent, rather than that of the imsurance compcmy, should be the chief inquiry. The corporation or its executive officers probably did no thinking and had no emotions upon the subject, but had engaged to pay and was ready to pay to whomsoever the assured directed. It does not here take sides, and claims no voice in determining the beneficiaries.

Slight circumstances, then, ought to suffice in giving construction to, and to characterize the meaning and application of, the words used in the policy, so as to prevent gross and unnatural results, such as would come if the fund was adjudged to belong to the administrator.

I, therefore, favor the affirmance of the judgment.

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


author: Learned, P. J.: Fish, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. AARON B. GARDENIER, Appellant, v. THE BOARD OF SUPERVISORS OF COLUMBIA COUNTY, Respondent.

      Extradition proceedings — disbursements of a district attorney, in conducting the same, are a county charge — treaty betioeen the United States and Great Britain of August 9, 1842.
    Where a crime has been committed, an indictment has been found, and the accused has escaped, the district attorney of the county in which the indictment has been found may properly incur reasonable expenses in efforts to procure the extradition of the fugitive from another country, and disbursements so made by him are a proper county charge. (Fish, J., dissenting.)

      The provisions of the treaty between the United States and Great Britain of August 9, 1843, to the effect that “the expense of such apprehension and •delivery shall be borne and defrayed by the party who makes the requisition .and receives the fugitive,” has no relation to expenses thus incurred by the district attorney, but simply relieves the government which delivers the fugitive from the duty of incurring or paying any expenses connected therewith.
    "Whether expenses incurred by the district attorney, preliminary to an application to the governor of the State for a requisition for the return of the fugitive, are or are not properly a county charge cannot depend on the regulation or directions of the department of State.
    Appeal by the relator from an order granted at the Columbia County Circuit sustaining a demurrer to an alternative writ of manda/mus, which order was entered in the office of the clerk of the county of Columbia on the Ith day of November, 1888, and •also from the judgment of said court, entered in said clerk’s office -on the 15th day of November, 1888.
    The facts alleged are as follows: One Cadby was indicted at Columbia county in April, 1886, for forgery. Previous to that time he had Ted to Hamilton, Province of Ontario, Dominion of Canada. In March, 1886, the relator, who was the district attorney of Columbia county went to Hamilton to institute extradition proceedings there against Cadby. The relator commenced these proceedings, but before Cadby could .be arrested he Ted from that Province to Halifax, Nova Scotia, in order to take ship for England. The relator pursued him to Halifax and there again commenced extradition proceedings. Cadby was arrested. While officers were carrying him through New Brunswick lie was taken under habeas corpus to St. John, New Brunswick, and there was discharged about March eighteenth. Proceedings for extradition were then taken in New Brunswick, and Cadby was arrested and held. At relator’s instance, on the requisition of the Governor of the State, the President of the United States demanded the delivery of Cadby, and he was thereupon delivered and Tnally lodged in the jail of Columbia county about June 2, 1886.
    The relator presented to the supervisors a bill for his disbursements and expenses in this matter. The bill includes railroad fare, hotel bills, telegrams, meals on railroad travel, detectives’ services, services of attorneys employed in Canada and services of attorneys of this State. The aggregate of which was over $1,000. None of these expenses were made as agent either of the Governor or of the President for the purpose of receiving Cadby and bringing him to the State of New York. The relator’s bill was presented to the board of supervisors and they refused to audit or allow it, or any part of it.

      Albert Hoysrccclt, for the appellant.

      1L E. Andrews, for the respondent.
   Learned, P. J.:

The relator relies, first, on the clause in article 10 of the treaty between the United States and Great Britain August 9, 1842. (Treaties of U. S., p 320), as follows: “ The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive.” The word party ” in this clause refers to the contracting parties to the treaty, as will appear by article eleven. It is intended to relieve the government which delivers the fugitive from the duty of incurring or paying any expense. It has no reference to the question which might arise between the government which receives the fugitive and any of its officers or citizens. That clause of the treaty does not touch the question here raised.'

Again, the relator urges that, by the regulation of the State Department, ajqilications must come from the Governor of the State, and that in this State applications to the Governor must come from the district attorneys. And it appears that, when Cadby had been finally held in New Brunswick, the relator applied to the Governor, and, according to the practice after stating that, in his ojiinion, the ends of public justice required that the criminal should be brought to the State for trial at public expense, he stated that he was willing that such expense be a charge on the county of Columbia.

This consent of the relator, of course, refers to such expense, and only to such expense, as might be incurred by the Governor on the part of the State, or by the President at his requisition. It does not refer to expenses already paid or incurred by the relator previously. It could not refer, therefore, to any part of this bill, for the writ expressly states that these expenses were not made as agent or the like in making the demand or bringing back the fugitive. These expenses wore all made as a preliminary to the application to the Governor. Whether they are, or are not, properly a county charge cannot depend on the regulations of the executive department of the State. Prior to the action of the Governor upon the relator’s application the State had incurred no expense. All that had been previously done had been done by the relator voluntarily or in the performance of the duties of Ms office. And the question of the liability of the county must be decided by an examination of the powers and discretion intrusted to the district attorney. No light is thrown thereon by the treaty or by the regulations of the United States or the State government relative to extradition. Indeed, as to anything done in procuring the demand from the Governor and the like, the relator is forbidden to take compensation. (Penal Code, § 51.)

There is no doubt that it was the duty of the relator to conduct the prosecution of the offense of Oadby. (1 R. S., in. p. 383, § 89.) It was one cognizable in the Oyer and Terminer of the county of Columbia. Certainly, to conduct the prosecution means more than simply to attend the trial. A district attorney would be neglectful of his duty who should omit to take any steps to secure the attendance of witnesses or the presence of the accused at the trial. The investigation whether a crime has been committed, and the labor of seeing that the accused person shall not escape, may certainly, in some cases, come within the words: “ Conduct all prosecutions for crimes and offenses.” This language follows that used in chapter 8,. Laws of 1796, which authorized the appointment of assistant attorneys-general for several “ districts ” of the State, to “ manage and conduct all suits and prosecutions for crimes and offenses;” Hence, undoubtedly, we have our present “ district attorney.” Thus it has long been the policy of the State that prosecutions should be conducted rather by a public, than by a private, prosecutor. To. conduct such prosecution must require the expenditure of money. Therefore, it is provided in 1 Revised Statutes (m. p. 385, § 3) that the following shall be county charges:

Subd. 2. The fees of the district attorney and all expenses necessarily incurred by him in criminal cases arising within the county.

Subd. 9. The moneys necessarily expended by any county officer in executing the duties of his office, etc.

Now, there is no question that the Cadby Case arose in the county of Columbia. Were these expenses necessarily incurred % The meaning of these words was passed upon in People ex rel. Hall v. Supervisors (32 N. Y., 473). They were said to include such expenditures as were not only needful and proper as distinguished from such as are needless and improvident, but also reasonable, .appropriate and necessary in the discharge of the particular official duty. This same principle is affirmed in People ex rel. Johnson v. Supervisors (45 N. Y., 196). It is not necessary to cite further •cases.

The supervisors, in refusing to audit the relator’s account and in demurring to the alternative writ, have placed themselves on the ground that these expenses were not a county charge, even if they were necessarily expended in the case of Cadby. In this we think they were in error.

Probably it is not for us, on this ajipeal, to decide in detail as to the necessity of each item, as no proof on the matter is before us Prom the circumstances of the case, in any such criminal matter the district attorney, to a large extent, must be the judge of what expenditures are needed. It would interfere with the course of justice if he had to -decide, in every instance, when he expended money, at the peril of having the board of supervisors decide otherwise, after the public interest in the capture and conviction of the accused had subsided (People ex rel. Kinney v. Supervisors, 58 Barb., 139.)

The defendant’s counsel, in commenting on this provision for the payment of expenses necessarily incurred, cite People ex rel. Ayres v. Supervisors of Fulton County (14 Barb., 56). But that was a claim for the payment of services rendered by the district attorney for which no compensation was provided by law. In this case he is not asking for payment for his services, but for reimbursement of expenses. ■ And if these expenses were necessarily incurred (as is admitted by the demurrer), there is no justice in refusing to reimburse him. The expense of prosecuting crimes committed within the county must fall on the county, and not on an officer who has been vigilant in doing his duty. We are referred to no case by the defendant’s counsel showing that such expenses as these are not a proper county charge. And it is hardly to be supposed that in many cases in which fugitive criminals have been arrested in other States and countries, and ultimately brought back to this State, the expense of discovering and arresting them has been borne by the district attorney of the county from his own private funds without reimbursement.

When a crime has been committed and an indictment has been found, and the accused has escaped, some one must decide whether any effort, and what effort, shall be made to capture him. We know of no other officer than the district attorney who is to decide this question. Certainly it is not one for the board of supervisors. If there is any benefit to the public in the punishment of crime, it is important that the criminal shall not escape such punishment by fleeing to another country. We should be very unwilling to say that expenses of a district attorney, honestly made in the effort to recapture in another county a fugitive from justice, were not to be regarded as necessarily incurred. It is carefully pointed out in People v. Supervisors of Delaware County (ut supra, 199, 200), what are the respective duties of the court and of the supervisors in regard to contingent charges against the county. And it is not on these papers our duty to determine the amount to which the relator is entitled. But he is entitled to have his bill audited in accordance with the views we have stated.

The order sustaining the demurrer must be reversed and judgment for the relator must be granted on the demurrer, that a peremptory mandamus issue as prayed for in the writ, with costs below and on the appeal.

Landon, J., concurred.

Fish, J.

(dissenting):

The judgment of the Special Term was right, and on several grounds should be affirmed.

First. The relator, as district attorney for the county of Columbia,, had no call to leave the county and country and to go into a foreign jurisdiction in pursuit of a fugitive. It was no part of the duties imposed upon him by virtue of his office. It became his duty to attend the criminal courts of the county, to give counsel to and prepare the indictments for the grand jury, and to attend the trials of the indictments so found. When an indictment was found against a person, not already a prisoner, it was very proper for him to issue a bench warrant and deliver it to a sheriff directing the arrest of the person; and from that point in the ease he had no duty until the party was arrested and in custody.

He was not called upon to accompany the sheriff upon a hunt for the fugitive. The statute did not constitute the district attorney an arresting bailiff; and it did not charge him with those duties which belonged to the executive department of the State or of the United States government. The extradition of fugitives from justice from foreign countries belonged to the United States government. The people of the county of Columbia had no more interest in the return of the fugitive than had the people of any other county of the State. Because the crime was committed within that county it did not throw the burden on the taxpayers of that county to. enforce the provisions of a treaty between the general government and a foreign province. The county of Columbia could make no-demand for his return. If the district attorney had any duty in connection with such a case, it was only to furnish proof to the executive department of the United States that there was a proper case upon which the government should act.

When the relator got beyond the limits of the United States into-Canada all the functions of his office ended. He did not carry with him the powers which he possessed while in the county of Columbia, but was nothing more than an individual, acting upon the impulses of his individual desires. If he assumed to do duty for the United States government, it became and was a matter-between him and that government, not a matter for which the taxpayers of Columbia county were liable. It would be much safer to hold that the district attorney in absenting himself from the county by which he was employed, to go into a foreign country, was neglectful -of his home duties. It is to be presumed that he was needed within the county for which he was elected. It does not appear how long a time he was absent in pursuit of Oadby; but assuming that he was rightfully there at all, he could continue his absence for an indefinite period, leaving the affairs at home to take care of themselves.

Upon no principle whatever can his journey into Canada be defended. As well might it be claimed that the sheriff of the county of Columbia was expected to go in person on the trail of a fugitive and attend to the execution of the requisition, as that the district attorney of a county should so do. When the relator sought to prosecute the proceedings in the courts of a foreign jurisdiction, he took an extremely comprehensive view of his duties as prosecuting attorney for the county of Columbia.

Second. There was and is no liability on the part of Columbia county to pay this bill. There is no written statute or precedent for it. There certainly would be no justice in a law or precedent which required it.

The only authority for the extradition of runaway criminals resides in the general government, and the power and authority comes by virtue of treaty stipulations. The high contracting parties may agree, as between themselves, to any terms or conditions, but their action cannot create obligations upon any person, province or city. The provision in the treaty, copied in the writ, that the expenses of reclaiming a criminal shall be borne by the party making the application, has reference only to the parties to the treaty; it has no reference to the person or official who may enter 'the complaint, so that the regulation by the executive department of the State, requiring that the application shall come from the district attorney of the county in which the indictment is found, with liis consent, that the expense shall be charged to his county, does not and cannot create a liability against the county. It relieves the State from the burden, but it casts no legal burden upon any other locality. And then, again, if it had the effect to fasten the expense upon the county, it could have no reference to the personal expenses of a traveling district attorney through a foreign country, or the expense of litigations before foreign courts.

Third. A demand of this kind ought not to be enforced by the arbitrary process of mandmms; it ought not to be enforced by any process, unless the law giving it validity is clear and unquestionable.

If this precedent is made and established, the result which may come can hardly be estimated. The small bill of $4.013 will be only a premonition of future jDrogress in the same direction. Probably there is not a county in the State but has the same occasion for its local officers to travel in foreign parts. A district attorney who accepted the views maintained by this decision would make an expensive department for his county. There may come a day when an officer of less virtue and integrity of purpose than the relator will secure the office, and who, under the cover of a chase for a fugitive from justice, may, at the expense of the county, take •expensive travel, there being no limit to the line of pursuit.

It was well said by the learned justice at the Special Term that “ if his construction could he maintained, then it would not only he ■the privilege hut the duty of the district attorney to follow a fugitive, charged with the commission of a felony, not onl/y into another State, hut to mother continent, and his pursuit would only he limited hy the extent of the extradition treaties between the United States and foreign countries.”

The proposition seems untenable, almost from its absurdity. If this bill can be enforced against the defendant, any district attorney may at the expense of his county, at his option, follow any fugitive who is indicted within his county to the uttermost parts of the earth. The right to enforce the bill against the county would not •depend upon his success. The right to be reimbursed does not ■depend upon the success of the enterprise. In this case, if the relator had failed to capture his man, his claim to be reimbursed would be as good as now.

I conclude that the order of the Special Term ought to be •affirmed, with costs.

Order sustaining demurrer reversed and judgment for relator on •demurrer that peremptory mandamus issue as prayed for in writ, with costs below and on appeal.


author: Fish, J.: Landon, J.: Learned, P. J.

text:
    EMMA DUNCKEL, Respondent, v. WILLIAM DUNCKEL, Appellant.

      Oral agreement by a sole legatee and executor of a deceased maker of a note, to pay it — right to enforce the agreed consideration therefoi', viz., the giving of a life estate in land.

    'One J. A. Dunckel, -wko was indebted in an amount of over $11,000, for the payment of about $7,500 of which one William Dunckel was liable as surety, died, leaving a will appointing his wife executrix and sole legatee thereunder. Soon after the death, William Dunckel promised the widow and executrix that if she would pay these debts on which he was liable, and would save him from paying the same, he would give her a life estate in certain land which had been occupied by John A. Dunckel during his lifetime, but of which William Dunckel was the owner. The widow agreed to pay these debts, for which, at that time, it was uncertain whether the estate of the deceased would be sufficient. She subsequently paid the debts, and delivered the notes on which William Dunckel was liable, to him, and demanded the life lease of the premises which she had continued to occupy after the death of John A. Dunckel, her testator.
    It was claimed by William Dunckel that there was no consideration for the contract, inasmuch as the debts in question had been paid out of the assets of the estate of the testator, who was primarily liable.

      Reid, that the plaintiff could not maintain an action against the defendant because of any money thus paid, for the reason that she had paid nothing except what she was bound to pay from the moneys belonging to the estate of her testator without regard to the agreement. (Learned, P. J., dissenting, on the ground that the promise was to pay the debts, whether the assets were sufficient or not.)
    That the agreement was in violation of the provisions of section 8 of title 1 of chapter 7 of part 2 of the Revised Statutes, providing that “ every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract or some note or memorandum thereof expressing the consideration be in writing, and be subscribed by the party by whom the lease or sale is to be made.”
    That while there are cases where purchasers have entered into possession of land, and paid the purchase-money or made substantial improvements and considerable expenditures thereon, in which courts of equity will specifically enforce the parol agreement, yet, in this case, there was no fraud to be frustrated, and no injustice to be prevented, and equity would not interpose on' the plaintiff’s behalf. (Learned, P. J., dissenting.)
    Appeal by the defendant from so much of a judgment, entered in the above-entitled action in the office of the clerk of the county of Montgomery on the 23d day of April, 1888, as awarded judgment against the defendant, and also from orders denying the defendant’s motion for a new trial, and form an order granting an extra allowance.
    The action was tried before the court and a jury at the Montgomery Circuit, and the judgment directed that, within ten days after service upon him of a certified copy thereof, the defendant, William Dunckel, should execute and deliver, duly acknowledged, to the plaintiff, Emma Dunckel, a proper and sufficient lease for her life of certain premises in the village of Fort Plain, Montgomery county, New York.

      N. O. Moak, for the appellant.

      JE. Counfryman, for the respondent.
   Fish, J.:

John A. Dunckel, the husband of plaintiff and son of defendant,, died on the 9th day of February, 1883. At the time of his death John A. and his wife were occupying a house and lot, in the village of Fort Plain, which was owned by the defendant. They had occupied the same for about seventeen years, paying no rent to defendant, during which time John A. paid the taxes and made improvements upon the property from time to time, which amounted in the aggregate, according to the testimony of plaintiff, to about the sum of $2,800. Before that time the defendant advanced to-his son $3,000 with which to start business; and had paid $2,500-for the house and lot. When John A. died he was largely indebted to divers persons, and the defendant was indorser or surety for him upon divers notes, constituting a considerable part of the indebtedness, and was thus contingently liable to pay the notes. It was not known to a certainty whether or not the estate of the deceased was. sufficient to pay his debts in full. There was some uncertainty about it. It afterwards transpired that the entire indebtedness of the estate, which plaintiff paid as executrix, was $11,147, and the assets which came into plaintiff’s hands as executrix netted, in the aggregate, $11,781, sufficient in amount to pay all the indebtedness, and leave-a balance, enough' to cover the fees of plaintiff as executrix and $300 allowance to which she was entitled by statute. It was, also, afterwards ascertained that the sum for which defendant was so-liable as surety was about $7,500.

Soon after the death of John A., and before administration upon his estate, the defendant, not knowing the exact amount of the son’s-estate, and being apprehensive that it might not be sufficient to pay and satisfy all of said indebtedness, so that he might be required to-pay some balance of said debts from his own means, agreed orally with plaintiff that if she would pay said indebtedness, he would give her a life lease for her own life of the before-mentioned house and lot which she then continued to occupy after her husband’s death.

Plaintiff herein agreed to the proposition and proceeded with her-duties as executrix of her husband’s estate, and with the moneys-realized from her husband’s estate paid the debts, paid all the notes upon which defendant was indorser or surety, and gave'them up to the defendant, asking for the promised life lease. The plaintiff did not pay any part of said indebtedness from her own money or means, .and was compensated for her duties as executrix by her lawful fees. There was no money or property consideration passed between them. 'The plaintiff was at the time in possession and actual occupancy of ■the premises in question; had no occasion to move or make any change in her business or condition in consequence of the agreement. She .•simply continued to occupy the same as she had done while her husband was living.

There is great conflict in the testimony as to whether or not the defendant ever made the agreement found, but there was sufficient -evidence to justify a finding that it was so agreed; on this appeal, the case must be treated on the assumption that such an agreement was made.

Upon the case stated this action cannot be maintained. The ■agreement in question is obnoxious to the provisions of section 8 of title 1 of chapter 7, part 2 of the Revised Statutes, which is as follows:

“ Every contract for the leasing for a longer period than one year, •or for the sale of any lands, or any interest in lands, shall be void, unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom, the lease or sale is to be made.”

There are cases where, in pursuance of a parol agreement, purchasers have entered into possession of land, paid the purchase-money or made substantial improvements and considerable expenditures thereon, in which courts of equity have enforced the agreements .by compelling a performance.' (Freeman v. Freeman, 43 N. Y., 34; Miller v. Ball, 64 id., 286; Kenyon v. Youlen, 53 Hun, 592.) However, in the case before us, we have not one which conies within the principle thus decided. The plaintiff herein lias done nothing to entitle her to the relief demanded. There is no fraud to be frustrated, no injustice to be prevented. Equity interposes only in such cases on account of what a party has done, as where the parol purchaser has fulfilled and lias invested either money or other value which will be lost to him and gained by the other party, unless the latter be required to perform his part of the parol agreement. In other words, equity is allowed to relieve the stern features of the .statute of frauds only when it it necessary to do so, and in cases where the enforcement of the statute would work a fraud rather than prevent one.

The full payment of the purchase-money in a parol purchase of land, standing alone, does not entitle a party to relief as against the-statute. There must be some further action. In cases of the purchase of lands in general, the taking possession and making improvements after payment of the purchase-money has heen held a necessary condition. (Malins v. Brown, 4 N. Y., 403; Miller v. Ball, supra; Freeman v. Freeman, supra; Wheeler v. Reynolds, 66 N. Y., 231.)

There was no sufficient consideration passing between the parties-to uphold the agreement; whatever conversation did pass between, plaintiff and defendant after the death of John A. Dunckel, regarding the subject of controversy, had relation to the estate of the deceased. John A. Dunckel had left a will in which he had made plaintiff his sole executrix and residuary legatee. She was about to take charge of the estate in her capacity as executrix, in the discharge of the duties of which she was bound to apply the same to the payment of the debts of her deceased husband. If defendant agreed to-anything, it was simply this ; if she applied the assets of the estate-to the payment of the debts in full, so that the defendant should not be called upon to pay any part of them, he would let her stay where she was, would not disturb her possession, but would give-her a lease for her lifc for the house and lot. It was only a good natured promise by an old man to the widow, which created no-legal obligation on either side, and, as a fact, the plaintiff did nothing but apply the money of the estate as it was her duty to do,, and which the law would have enforced. This agreement was of no more legal force than would have been a promise that if she-discharged the duties of her trust properly and according to law, he would make her a handsome present, or would give her additional compensation.

It is not a matter of much moment in this case what was the arrangement between the father and son at the time he purchased the house. The defendant bought the property for $2,500, and allowed his son to occupy the same for seventeen years without paying rent. Prior to that time he had advanced to his son $3,000' to go into business. Suppose, then, at the time he bought it, he had :said he was buying it for his son, it was an expression, as between father and son, having a different meaning than if between strangers. Every father as he advances in years is laboring for his children and .saving his estate for them. Then suppose the story of the plaintiff to be true, that in the course of seventeen years her husband had laid out $2,800 in improvements, he' would scarcely by that process have paid a rent equal to the interest on the purchase-money, and would not have reduced the advance of $3,000 before advanced •to him. In the year 1866, when defendant made the purchase, •the i’ate of interest was seven per cent; so that the interest on •$2,500 ran at the rate of $175 per year for the seventeen years, and -exceeded the amount of the son’s repairs and improvements. As •between the father and son while living, there was no legal or •equitable right on the part of the son to demand a deed.

This action is not to be decided upon any sentimental idea oí what an old father ought, in good nature, to do for his children or •.their widows. "When relatives resort to the courts to enforce ■alleged legal demands, they must be governed by the same rules •and bearings as other hostile parties.

Finally, as an independent proposition, this plaintiff has not done anything or paid anything which gives her a claim of any sort against defendant. She could not maintain an action- against defendant for any money paid, because she has paid nothing ■except what she was bound to pay from the moneys belonging to the estate, without regard to the agreement. He owes her nothing for services. All she has done was to discharge the duties of executrix, for which she was paid out of the estate. It was not part of the agreement that she was to act as executrix, nor did she assume that duty because of the agreement. She expected to and did accept the trust because the will of her husband so appointed. The defendant agreed with her that if she would do her duty in the discharge of that trust, as the law itself required, he would give her the life lease. There was, therefore, no legal consideration for the agreement.

The finding of the Special Term that the plaintiff was entitled to judgment against the defendant, and requiring him to execute to plaintiff a life lease of the premises was error, and the judgment should be reversed.

Let judgment be reversed and new trial granted, costs to abide event.

Landon, J.:

The plaintiff paid the notes from tlie ample assets of tlie estate of which she was executrix, as it was her duty to do, irrespective of any promise on her part. So far as her promise to tlie defendant contemplated her payment of any sum beyond what the assets might prove ample to pay, it was an oral promise to be surety for the payment of her deceased husband’s debts, it was void in law; if we assume it to be valid, it has never matured; she has had no occasion to perform it, and has not performed it. She has simply discharged her duty as executrix, and the defendant has received satisfaction from the estate and nothing from the plaintiff personally. No equity, therefore, exists in plaintiff’s favor to compel the defendant to perform his concurrent promise in her favor.

I concur with my brother Fish.

Learned, P. J.

(dissenting) :

The plaintiff is the widow, executrix and sole legatee of John A. Dunckel, who died February 9,1883, and who was the son of defendant. Since 1866 the defendant has been the owner in' fee of the premises in question, but they were occupied by John A. Dunckel from that time until his death.

At the time of his death John A. Dunckel was largely indebted. The total indebtedness turned out to be over $11,000; on about $Y,500 of which the defendant was liable as surety in some form. The defendant was apprehensive that he might have to pay these debts or part of them.

Soon after the death of John A., and on or about February 12,1883, and before the probate of the will, the defendant promised the plaintiff that if she would pay these debts, on which he was liable, and would save him from paying the same, he would give her a life lease of the premises.

The plaintiff did pay all these debts, most of them in February and March, 1883, and the remaining debt when payable January 26, 1884 ; and delivered the notes on which he was liable to defendant and requested the life lease.

From and after the death of said John A. the plaintiff continued to occupy and still occupies said premises. It does not appear that John A. had any lease of the premises.

The jury found the verbal contract as above stated, and the payment of the debts by plaintiff relying thereon, and these findings are approved and adopted by the court. It is evident that, at the time when the agreement so found by the jury was made, it was not known exactly to how much the property of the deceased would amount. He had carried on a store, and it was arranged among the parties interested that the stock should be sold at seventy-five cents on the dollar, since some purchasers were ready to buy.

There was received by plaintiff from the assets about $10,600. Her commissions were about $300. There are some other items amounting to about $200. It is stated that plaintiff received some rent of the store for three years after her husband’s death. The respondent claims that there is a mistake as to the amount of such rent. But that is of little consequence. Practically, the assets were very near the amount of the debts.

The defendant insists that there was no consideration for the contract because plaintiff paid the debts out of the assets, as was her duty. But the question is, what did she agree to do ? If she only agreed to apply the assets to the debts, then it is true there was no consideration. If, however, she bound herself personally to pay them, then she assumed a liability which she would have to perform whether the assets should prove to be sufficient or not. And as the matter was then uncertain, no inventory having been taken, and as she was not then executrix, she took a risk upon herself personally. The defendant was under a contingent liability. He wished to be relieved from this quickly and surely. It was not then certain that she would act as executrix. Therefore, he induced the plaintiff to agree to pay the debts, including those on which he was liable, in consideration that he would give her a life lease of the property. There is evidence that defendant thought there was not enough to pay the debts. The plaintiff; had been a dressmaker for some five years before her husband’s death, and, according to her testimony, she told defendant she would pay every debt “ if I could draw my needle long enough to do so.” Hence it appears that the agreement found by the jury was her personal obligation, and not amere agreement to apply the assets faithfully.

In Maddison v. Alderson (L. R., 8 App. Cases, at 474), it is said that the statute of frauds does not avoid the contract, but only bars remedies. If we look at 2 Revised Statutes (m. p. 135, § 10), which •preserves the power to compel specific performance, we shall see that the same must be said of our statute. For that section recognizes the validity of the contracts in so far as it authorizes the court to compel performance. The question then remains, viz.: Is the present a case in which the court should grant specific performance %

First. The plaintiff has fully performed her part of the agreement. When the agreement was made neither party could have understood that the plaintiff was to pay the debts exclusively out of her own property other than that of the estate. Both knew that she could apply, and ought to apply, to them the assets of the estate. But she herself owned the assets subject to the debts, and she agreed,, as the jury have found, that, at all events, she wbuld pay the debts and thus save the defendant from loss. This was not a promise to pay the debt of another. (Leonard v. Vredenburgh, 8 Johns., 29.) And the defendant, in consideration of that agreement, promised her the life lease. What was the use of making any agreement if its-meaning was only that she was to apply the assets to the debts ?•' Evidently more than this was meant. She has fulfilled her part of' the agreement. Possibly, in selling the stock at once and in a, hurry, she may have, as sole legatee, suffered some loss. And, evidently, at that time the defendant was uneasy and anxious rather to remove his own liability than to have the estate managed to the best advantage for her. She yielded to his wishes, sold off the property at once and closed up the estate before the statute, required. Cannot a surety make an agreement with some third party to save him harmless from liability as surety ? Is not such an agreement valid even though, in the end, the principal debtor shall pay the debt % That was the agreement which the defendant made with the plaintiff

It is very possible that the best authorities hold that the mere payment of even the full consideration does not, of itself, justify the court in granting specific performance of a parol agreement. There must be some additional element, as some authorities hold; and that element exists here.

For, second. The plaintiff is in possession.

Now, it is true that if the purchaser, under a parol agreement, gets possession by trespass or against the will of the owner, such qDossession avails him nothing. So, too, if he had been in possession before the contract, under some other title, then the possession is not referable to the contract. But neither of those circumstances exist here. The plaintiff is not in by trespass or against the consent of the owner. She has remained in undisturbed possession since her husband’s death in February, 1883, and not till February, 1886, •after she had paid all the defendant’s liabilities, did he give her a notice to quit. There is no evidence that the defendant could not have compelled immediate possession after the husband’s death. The jury have found that John A. had no contract for the propertju Probably, then, he was a mere strict common-law tenant at will (4 Kent’s Com., 114), and the personal representative of the deceased lessee would seem to have no right to possession. (1 Wash. on Real Prop., 373.) John A. paid no rent, but was living in the house by the consent of the defendant.

Therefore, the plaintiff had no other right to the possession except such as she acquired under defendant’s agreement. Furthermore, it will be seen that she was not a devisee under the will.

Now, it is true, as defendant argues, that the possession of the premises which will justify a decree of specific performance in the case of a verbal agreement, must be a possession referable to the contract. But it is well said in Morrill v. Cooper (65 Barb., 520), that where acquiescence in the possession has been for a considerable time, that circumstance must be taken into consideration. In that case the plaintiff had been allowed to remain in possession eleven months. Here she had been in possession three years. And this circumstance is a strong indication that her possession was under the parol agreement. Hnder what else could it have been? What has been her position since her husband’s death ? She has not been paying rent, but has, so far as appears, held the property absolutely as her own, claiming to own it and refusing the defendant possession even of a part of the house.

We have, also, the further fact, found by the learned justice, that in February, 1886, the defendant asked of plaintiff that she would permit him and his wife to move into part of the dwelling and that she refused this, but offered to surrender the premises if he would pay her what the deceased had expended for improvement; and, again, that soon afterwards defendant offered plaintiff $500 if she would move out, which she declined. It was then that defendant gave the notice to quit. These two circumstances enforce the view that the plaintiff was in possession under no other authority than that of the verbal agreement. For the defendant then admitted her right and requested a favor.

It does not seem necessary to cite authorities to the point that where there is a parol agreement for the conveyance of land, and the purchaser has paid the full consideration and has taken possession under the parol agreement, equity will decree a specific performance. "We need only refer to 3 Pomeroy’s Equity (§ 1409) and to the cases cited in the note, where it is shown that open possession or permanent improvements, or the two combined, constitute sufficient parol performance. And one reason why possession is sufficient is, that it would be unjust to permit the legal owner to oust by ejectment the person who, under the agreement, is rightfully in possession. (Kenyon v. Youlen, 53 Hun, 591; Coles v. Pilkington, L. R., 19 Eq., 174.) The real question in the present case must be whether there was a valid consideration fully performed, and whether the possession was referable to the parol agreement. I think the court rightly decided these in the affirmative.

The defendant also urges that costs should not have been allowed. The complaint contained a claim that by an agreement between defendant and John A., defendant was to convey the premises to John A. The jury found in the negative. And the defendant, therefore, insists that neither side should have costs. It does not seem to us that this would be just. The two causes of action (if we chose to call them such) related to the same piece of property. It does not appear that the trial of the action was made more laborious by the addition of the claim just mentioned. The samé witnesses generally testified. This case is quite unlike that of Law v. McDonald (9 Hun, 23). I think that the allowance of costs was in the discretion of the court, and was proper.

Judgment should be affirmed, with costs.

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


author: Fish, J.: Learned, P, J.: Landon, J.:

text:
    JOHN ARTHUR, Appellant, v. THE CITY OF COHOES, Respondent.

      Use of public streets, by permission of the city authorities, for riding down hill upon hand-sleighs— liability of the city for an injury caused, thereby to a pedestrian.

    The common council of the city of Cohoes passed a resolution authorizing the mayor to designate such of the public streets as he might deem proper, upon which small sleds, or sleds without horses, could and might be used for the amusement of sliding or riding; in pursuance of which resolution the mayor designated, among other streets, Columbia street.
    In an action brought to recover damages for injuries sustained by reason of the plaintiff's having been run into upon that street and seriously injured by a large bob-sleigh loaded with twelve or fourteen persons.

      Held, that it was a proper question for the jury whether it was a legitimate use-of the street to allow the same to be used for amusement in sleigh riding.
    That the city, having obtained a verdict upon the whole case, was not liable because, under cover of such license, a reckless person might have come upon the street with a large sleigh and run down a pedestrian using the same.
    That, subject to such rights as the abutting owners of property had, the city may give direction as to the use which might be made of the public easement in the city streets.
    Appeal by the plaintiff from a judgment, entered in the office of the clerk of the county of Albany on the 15th day of March, 1889, in favor of the defendant, and against the plaintiff for costs,, and also from an order denying plaintiff’s motion to set aside the verdict and grant a new trial upon the minutes of the court, entered in said clerk’s office March 11, 1889.
    The action was brought to trial at the Albany Circuit before the-court and a jury, by which latter a verdict was rendered in favor of ■ the defendant. The action was brought to recover for injuries sustained by the plaintiff by being run down while walking along Columbia street, in the city of Cohoes, by a bob-sled or hand-sled, being a sled without horses, containing quite a number of persons-thereon, coming down Columbia street, in said city of Cohoes, at a very rapid rate of speed.

      J5F. O. MoahyioT the appellant.

      p. D. JSTwer, for the respondent.
   Fish, J.:

"Whether or not there was negligence on the part of defendant, through which the plaintiff was injured, was a question of fact for the jury. It was fairly submitted to the jury, and their verdict is conclusive.

Whether the plaintiff was himself free from negligence which contributed to the injury, or rather whether plaintiff showed to the satisfaction of the jury that he was free from contributory negligence, was also a question of fact properly submitted and properly decided by the jury. .

On both these questions the plaintiff held the affirmative. If he failed on either, his case was lost. On the last part of the case, bearing upon the question of contributory negligence, the case is very barren of proof. It was a close question whether or not plaintiff had enough evidence to admit of the case going to the jury. He had the affirmative, and it was only a question, which made it very close whether or not he ought to have been nonsuited. The jury found against him and he must abide by the decision. The common council of the city of Oohoes had passed a resolution authorizing the mayor to designate such of the public streets as he might deem proper upon which small sleds, or sleds without horses, could and might Toe used for the amusement of sliding or riding. In pursuance of that resolution the mayor did designate Columbia street as one of the streets on which such riding and sliding might be had and used. Whether or not this was an improper use of a public street, and whether or not the plaintiff’s hurt came from that use, as the resolution intended, were questions of fact for the jury. The resolution contemplated the use of small liand-sleds such as were not usually drawn by horses. The conveyance actually used and which, as is claimed, ran into plaintiff, was a large bob-sleigh loaded with twelve or fourteen persons. The fact that it was not drawn by horses did not affect the question. In any event, the jury had a right to take that view of the case, and hold that it was the abuse of the privilege by those running that particular sled which occasioned the accident. The whole case having been submitted to the jury their verdict must be held conclusive.

It is not necessary, and may not be profitable, to inquire if the common council of defendant had lawful power to allow the use of its streets for such purposes, or if they had no such power, and yet they, in form, granted such pel-mission, and in consequence of it mischief came to plaintiff, whether it could be so far held the act of the city as to make it liable, or whether such liability attached only to the individuals comprising the board. But pass that question and let us inquire: May not municipal corporations permit any innocent amusement of its citizens, including the use of hand-sleds, to be had upon the streets without incurring liability, even though some accident may come of it and somebody be hurt ? Suppose the resolution in this case had been to the effect that, in time of sleighing the citizens were at liberty to use any of the streets with horses and sleighs solely for the purpose of the amusement of riding and enjoying out-of-door sport and exercise, it would not be calling for any great violence of judgment on the part of a jury to say that it was reasonable and proper, and it would not be less so if it allowed a quasi toboggan upon a street suited to that amusement.

If it should happen that under cover of such license a reckless person should come upon the street with a large sleigh, filled with boisterous men and drawn by vicious horses, and, heedless of other people, run down a pedestrian, could it be said that the accident was the work of the city, because they had allowed the use of the streets for amusement in sleigh riding? Nearly all the sleigh riding done in the streets of a city is done for amusement. It is a perfectly legitimate use of the street whether it is for amusement or for business. The public have an easement in the streets which is subject to the control and management of the city authorities.

As against the adjoining owner of - property it is only a right of travel. Any adjoining owner of property may object to the use of a street in front of his premises, except as a highway for traveling purposes. If, however, the owner does not object, no outsider is wronged because the rights of the owner are invaded.

Subject, then, to such rights as the owners have, the city may give direction in the use of the public easement. The city authorities can properly allow the use of the streets for pleasure traveling, whether by vehicles drawn by horses or sleds drawn by children. They may permit a company of soldiers with a band of music to march through the streets, or any public gathering to march or parade. It will hardly do for us to hold, as a matter of law, that on public holidays, or on the occasion of any public meeting of citizens, the ornamentations of the streets, even with banners and ensigns, with festoons and triumphal arches, would be unlawful. It may be an open question how far a city can go in that direction, and when a controversy arises over any event of the kind, the best that any party who claims to be hurt by it can ask is, that it shall be submitted to a jury to decide whether in any given case the use was a reasonable one.

There is no occasion to find fault with the verdict in this case, and the judgment should be affirmed.

Learned, P, J.:

I concur in result, without passing on the question whether permission to use the streets for bobbing might not make the city liable in case of accident.

Landon, J.:

The testimony left it uncertain whether the plaintiff was free from negligence; and the verdict of the jury that he was not must be upheld. On the other questions the court held as favorably for the plaintiff as he was entitled to.

Judgment and order affirmed, with costs.