author: Martin, J.:

text:
    George H. McChesney, Appellant, v. The City of Syracuse and Others, Respondents.

      Mechanics lien — by sub-contractor — when ineffectual as against the owner — cha/pter 315 of the Zatos of 1878— costs.

    Where, at the time of filing a mechanic’s lien by a sub-contractor, the work had been abandoned by the contractor, and there was then nothing due him from the owner, such lien is ineffectual as against the owner, a municipal corporation, although it had appropriated, and had still, unexpended in its hands, a sum of money to be used for the construction of the building in question.
    The costs in an action brought in pursuance of chapter 315 of the Laws of 1878 rest in the discretion of the court, which has power to award a separate bill of costs in favor of each of several defendants.
    Appeal by tbe plaintiff, George H. McChesney, from that part of a judgment of tlie Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga ón the 23d day of February, 1893, upon the decision of the court, rendered after a trial at the Onondaga County Special Term, which adjudged that the plaintiff, by the filing and service of a certain notice of lien, did not acquire any lieu upon or right, title and interest in certain moneys appropriated by the city of Syracuse for the erection of a school building, and directed the payment of such fund to the defendant William Crabtree, and the cancellation of such notice of lien, and gave the defendants the City of Syracuse and William Crabtree costs of the action.
    A judgment in this action was entered in Onondaga county February 23, 1893, by which, as against the respondents, the plaintiff’s complaint was dismissed, with costs, and by which it was directed that the city of Syracuse pay over to the defendant Crabtree the sum of $1,234, and that the plaintiff recover from the defendants Baker & McAllister the sum of $1,498.54, with costs.
    The appellant appeals from that portion of the judgment which dismissed the complaint, with costs, as to the city of Syracuse and Crabtree, and also from that portion which directed the city of Syracuse to pay over to Crabtree the sum of $1,234.

      Gill (& Sbil/well, for the appellant.

      Charles K. Ide, for the respondent The City of Syracuse.

      Wilson, Kellogg <& Wells and Charles G. Baldwin, for the respondent Crabtree.
   Martin, J.:

This action was brought in pursuance of the provisions of chapter 315 of the Laws of 1818 to foreclose a mechanic’s lien filed in pursuance of that statute. The defendants Baker & McAllister were co-partners, and on October 2,1890, entered into a contract with the board of education of the city of Syracuse to furnish the materials and labor necessary to perform and complete the carpenter work on a brick school building according to plans and specifications made by Asa L. Merrick, who was the architect in charge of the building, for the sum of $4,434.

The plaintiff between November 22, 1890, and February 28, 1891, furnished materials to Baker & McAllister of the value of $1,322.90, which were used in the construction of such building, and for which he has not been paid.

On March 26, 1891, Baker & McAllister made a general assignment for the benefit of their creditors to the defendant Crabtree, who accepted the trust and entered upon his duties as such. But there came into his hands as such assignee only the sum of about fifty dollars, which was insufficient to pay the expenses of the assignment.

On the twenty-eighth day of the same month the plaintiff filed a notice of lien with the city treasurer of the city of Syracuse and the president of the board of education, for the sum of $1,822.90 and interest. The building was but partially completed at the time of the fíling of such notice. The sum of $2,600 had been paid upon the contract. At the time of the assignment, and when the notice of lien was filed, there was nothing due the contractors. There was, however, if the contract was performed, to become due the sum of $1,834, to be paid as the work progressed.

Baker & McAllister did nothing towards the performance of the contract after the assignment, but abandoned it, which was known to the board of education and the city of Syracuse through the supervising architect and otherwise. Crabtree was surety on a bond given by Baker & McAllister to secure the performance of the contract on their part.

The court found that after Baker & McAllister abandoned the contract, Crabtree, at the request of the architect, with the knowledge of the board of education and the city, undertook the work of completing the building under the supervision of the architect, and completed it in accordance with the requirements thereof and expended therefor, in addition to his own services, which were of the value of $250, the sum of $1,880 of his own funds, which was the reasonable value of the work and materials furnished by him; that Crabtree in no part of the business acted in his capacity as assignee of Baker & McAllister, and used no money of the assigned estate therefor, but acted as agent for the city, and under the authority, direction and control of the architect thereof, which authority of the architect and agency of Crabtree were duly ratified and confirmed, with full knowledge of all the facts, by the city, by its acceptance and occupation of the building as completed; and that the plaintiff, by filing his notice, did not acquire any lien as against the city of Syracuse or as against Crabtree upon the fund applicable to the completion of the building.

The court also found that on April 11, 1892, the city, through its board of education and upon an estimate furnished by the architect to Crabtree, paid him individually on the amount earned by him in the work of completing said building the sum of $600, and that there was in the hands of the city treasurer applicable to payments, for the construction of the work $1,234 to which Crabtree was justly entitled for the money expended by him for the completion of the building.

Upon the facts found, the trial judge held as conclusions of law : (1) That the plaintiff’s complaint should be dismissed as against the city and Crabtree, with costs to each against the plaintiff. (2) That the plaintiff, by filing his notice of lien and the service thereof, acquired no lien upon or to any of the money appropriated for the erection of the building mentioned in the contract. (3) That by the abandonment of the contract the contractors lost their right to recover from the city, or to receive any of the funds provided for the construction of the building, except such as had been paid them prior to the notice of the lien. (4) That the city should pay over to Crabtree the sum of $1,234, or whatever balance there was, and thereupon was entitled to have the notice of lien canceled and discharged. (5) Upon such payment being made, that the city should be released' and discharged from all liability to the plaintiff or the other defendants by reason of the execution of such contract. (6) That the plaintiff was entitled to recover against the defendants Baker & McAllister the sum of $1,322.90, with interest and costs. The court directed judgment accordingly.

There was very little conflict in the evidence given upon the trial. The only question upon which there was any substantial dispute was whether the defendant Crabtree completed the building as assignee of Baker & McAllister, or whether he did it individually and to protect himself against liability on the bond which he had executed to the board of education. Upon that question the court found that the work was performed by Crabtree individually, and not as such assignee. This finding was fully and fairly sustained by the evidence.

That the contract was abandoned by Baker & McAllister several days before they made their general assignment is quite obvious. We also think the evidence was quite sufficient to justify the court in finding that Crabtree was employed to complete the building for the city, and in holding that he was entitled to the remainder of the fund dedicated to that purpose. At the time of the filing of the notice of lien there was nothing drie Baker & McAllister. They bad before tbat time abandoned the contract, and the notice of lien was ineffectual to charge the funds in the hands of the city. The expense of completing the work, including Crabtree’s services, was several hundred dollars greater than the amount unpaid on the contract. Under these circumstances we are unable to discover any principle upon which it could be held that the plaintiff acquired a lien upon the fund in question. "We are of the opinion that the decision of the learned trial judge was right, and is fully sustained by the authorities in this State bearing upon the question. (Weisemair v. City of Buffalo, 57 Hun, 48; McCorkle v. Herrman, 117 N. Y. 297; Larkin v. McMullin, 120 id. 206; Van Clief v. Van Vechten, 130 id. 571; Hollister v. Mott, 132 id. 18; French v. Bauer, 134 id. 548; Mack v. Colleran, 136 id. 617; Ogden v. Alexander, 140 id. 356, 362.)

But it is said that the cases cited arose under the statute of 1885 and not under the'Laws of 1878. That is true as to most of them, and yet we think the principle of the cases is applicable to the question before us.

The appellant also contends that the city had no right under its charter to thus employ Crabtree to complete the work on this building. With this contention we do not agree. But if it were correct, we do not see how it would affect the rights of the plaintiff as it would not entitle him to recover. That question was one in which only the city and Crabtree were interested. So far. as this action was concerned, it in no way affected the plaintiff or any of his rights. It having been properly held by the court that the fund in question did not belong to and could not be recovered by the plaintiff, whether the court awarded it to the defendant Crabtree, or left it in the possession of the city, was a question which in no way concerned the plaintiff. We think the decision of the trial judge upon the merits of this controversy was right and should be upheld.

We have examined the various rulings of the trial judge uj>on the admission and rejection of evidence, to which our attention has been called, but have found no error which would justify us in reversing the judgment.

Nor do we discover in the refusal of the trial court to find in accordance with the proffered requests of the plaintiff any such error as would justify us in disturbing this judgment.

The only remaining question suggested by tlie appellant is as to the costs awarded to the defendants. The court dismissed the plaintiff’s complaint as against the city of Syracuse and the defendant Crabtree, with a bill of costs to the city, and one to Crabtree against the plaintiff. The statute under which this action was brought provides : “ Costs in all actions shall rest in the discretion of the court, and shall be awarded to or against the plaintiff or defendants, or any or either of them, as may be just.” (Laws 1878, chap. 315, § 11.) Thus, in an action commenced in pursuance of that statute, the costs are clearly in the discretion of the court, and we find no reason to doubt its power to award a separate bill of costs in favor of each of the defendants named, nor to question the propriety of such award.

These considerations lead us to the conclusion that the judgment should be affirmed

HaediN, P. J., and MerwiN, J., concurred.

Judgment affirmed, with one bill of costs only.


source: Caselaw Access Project

license: Public Domain

text:
    James Whitney, Appellant, v. John C. Roe, Respondent.

      Costs and disbursements at common law — regulated by statute — stenographer's minutes — when not taxable as a disbursement on a motion for a new trial in a County Court — review of the question by the Supreme Court — allowable to an attoi'ney as against his client.

    At common law neither costs nor disbursements were allowed to the prevailing party in any case, and their allowance has always been regulated by statute.
    Chapter 185 of the Laws of 1892, amending section 8256 of the Code of Civil Procedure, never, in fact, went into operation.
    Where a copy of stenographer’s notes has been obtained for the purpose of making a motion for a new trial on the minutes in a County Court, the fees paid the stenographer for making the same cannot be taxed as a disbursement in the action, unless the item was taxable under the practice of that court.
    It must be presumed that a County Court is familiar with its own practice, and it is not within the province of the General Term of the Supreme Court to determine what course of practice should bo adopted or pursued by a County Court in respect to the taxing of stenographer’s fees as a disbursement in an action.
    There are many cases where disbursements are paid by an attorney for the benefit of his client, which are not taxable against the adverse parties as costs, but which may be properly allowed to the attorney as against his client.

      Appeal by tbe plaintiff, James Whitney, from an order of the Chemung County Court, entered in the office of the clerk of the county of Chemung on the 7th day of November, 1893, striking from the plaintiff’s bill of costs the item of thirty dollars, stenographer’s fees.

      Dailey dé Bentley, for the appellant.

      Bobertson, Smith ds Bioll, for the respondent.
   Martin, J.:

This is an appeal from an order made by the Chemung County Court, striking from the bill of costs herein as taxed by the clerk the sum of thirty-six dollars, which was allowed for stenographer’s fees paid for the minutes of a preceding trial. The appellant insists that this item was properly taxed for the reason that the minutes were ordered by the court to be used on the hearing of a motion for a new trial made on the minutes of the trial judge.

In this case there had been a trial by jury, and a verdict rendered in favor of the defendant. The plaintiff then moved for a new trial on the minutes on the ground that the verdict was against the evidence, and on the various exceptions taken during the trial. This motion was entertained by the court, and a new trial was suDse-quently granted. In deciding the motion, which resulted in the order appealed from, the court, it seems, assumed the facts to be as stated in the plaintiff’s affidavits, which were that when the court entertained the motion for a new trial, it stated that it would be necessary to have a copy of the stenographer’s minutes of the evidence made for the purpose of such motion; that a copy was made on the application of the plaintiff, and used by the court and both parties in preparing, arguing and deciding that motion, and also used in all the subsequent stages of the action, and was procured because the court so ordered; and that the plaintiff paid the official stenographer therefor the sum of thirty-six dollars and thirty-six cents. Assuming these facts, the court held that the sum thus paid was not taxable according to the course and practice of the County Court.

“ At common law neither costs nor disbursements were allowed to the prevailing party in any case, and their allowance has always been regulated by statute. Unless, therefore, the plain tiff can point to some statute authorizing the clerk to allow and tax this item, the decision below is right.” (Equitable L. A. Society v. Hughes, 125 N. Y. 106, 108.) The only statute pointed out by the appellant, and the one under which he claims that this item is taxable, is section 3256 of the Code of Civil Procedure. While this section was amended in March, 1892 (Laws 1892, chap. 185), so as to include “ stenographer’s fees for minutes of testimony before a court, judge or referee” among the disbursements that might he taxed, yet, on May fourteenth of the same year, an act was passed again amending that section by omitting the juovision above quoted. (Laws 1892, chap. 592.) As it was provided by each of these acts that it should take effect September 1,1892, the act permitting such fees to be taxed never in fact went into operation. (Griggs v. Guinn, 29 Abb. N. C. 144.) Section 3256, as it now stands, and as it stood when the question in this case arose, so far as applicable thereto, after enumerating certain fees or disbursements which may be taxed, • provides: “and such other reasonable and necessary expenses as are taxable according to the course and practice of the court, or by express provision of law.”

It is not contended that there is any express provision of law which authorizes the taxation of stenographer’s fees under the circumstances which existed in this case. Hence, the question presented is whether they were taxable as reasonable and necessary expenses according to the course and practice of the court in which the. action was tried.

There have been numerous decisions in the Supreme Court and courts other than the County Court as to when stenographer’s fees might be taxed as a disbursement in an action, but we have been cited to and have found no case where the precise question involved upon this appeal has been decided.

While it has been'held that in the Supreme Court, stenographer’s fees might be taxed where a copy of the minutes is necessary to make a case or a bill of exceptions (Varnum v. Wheeler, 9 N. Y. Civ. Proc. Rep. 421), and where a copy of the minutes was necessary to enable the party procuring them to prepare amendments to a case (Sebley v. Nichols, 32 How. Pr. 182; Stevens v. New York El. R. Co., 9 N. Y. Supp. 701), but upon this question the authorities are conflicting. (Pfaudler Co. v. Sargent, 43 Hun, 154.) Yet, we liave found no case in tlie Supreme Court or any other where it has been held that where a copy of the stenographer’s notes had been obtained for the purpose of making a motion for a new trial on the minutes, the fees paid the stenographer for making the same could be taxed as a disbursement in the action. The question, however, in this case is not whether the stenographer’s fees could be taxed according to the course and practice of the Supreme Court, but is whether they are' taxable according to the course and practice of the County Court.

There are many cases where disbursements are paid by an attorney for the benefit of his client which are not taxable against the adverse party as costs in a case, but which may properly be allowed to the attorney as against his client. (Hovey v. Hovey, 5 Paige, 551; E. L. A. Society v. Hughes, 125 N. Y. 109.)

That the item in question in this case was taxable under the practice as it existed in the County Court was not made to appear either by evidence or authority. Indeed, there is nothing before us showing or tending to show that any such practice has ever existed in the Chemung or any other County Court. Under these circumstances we do not see how we can properly determine that such a practice existed, and that it was disregarded by the court below in granting the order appealed from. It must be presumed that the County Court was familiar with its own practice in this respect. That court was in a position to know, and could determine from its own knowledge and without any other evidence, whether the practice of that court required it to allow, or to disallow, such an item. We are not presumed to know as well as that court the practice which prevails therein in such cases." (E. L. A. Society v. Hughes, 125 N. Y. 106, 110.)

It is not, we think, within the province of this court to determine what course and practice should be adopted or pursued in this respect by the County Court. If no established practice existed which would justify the allowance of the item in question, then it was properly disallowed, as it was only such reasonable and necessary expenses as were in fact taxable according to the course and practice of that court which could have been allowed under the provisions of section 3256.

We are of the opinion that, in the absence of any evidence or authority which tends to show that the item in question was taxable according to the course and practice of the County Court, it must be presumed that the court below followed the practice as it existed in that court and that it was not taxable according to such practice, and, hence, that the order apjiealed. from should be affirmed.

HaediN, P. J., and MeewiN, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Caroline R. Garczynski, Respondent, v. Dorr Russell, Individually and as Executor and Trustee under the last Will and Testament of Lucy G. Russell, Deceased, and Others, Appellants.

      Judgment — when interlocutory and not final- — appeal therefrom- — Code of Oivil ' Procedure, §§ 1346, 1349 and 1001 — the right to appeal is purely statutory — it cannot he conferred by consent.

    A portion, of the relief sought in an action in the nature of a creditor’s bill was that an accounting should be ordered to be made by one of the defendants of certain property, and of the proceeds thereof, to the end that such property might be sold and the proceeds, or a portion of the proceeds, thereof be applied to the payment of the plaintiff’s judgment. The referee to whom such action was ' referred found as a conclusion of law that the plaintiff was entitled to the accounting demanded in her complaint, and the judgment entered upon such report contained a provision to that effect.

      Meld, that such judgment was an interlocutory and not a final judgment.
    A judgment of the Supreme Court which was not rendered at the Special Term or Circuit, but upon the report of a referee, and which is not a final judgment, is not appealable under the provisions of section 1346 of the Code of Civil Procedure, nor under section 1349, as it stood on March 2, 1893, and the amendment to section 1349 passed on May 6, 1893, to take effect September 1, 1893, has no effect upon an appeal taken on March 2, 1893.
    When an interlocutory judgment is entered upon the report of a referee the only method of reviewing it which existed on March 2, 1893, was by a. motion for a new trial upon exceptions under section 1001 of the Code of CivE Procedure.
    The fact that a respondent raised no question as to the appellant’s right to appeal does not confer upon the General Term of the Supreme Court authority to determine the question sought to be reviewed in the absence of any law authorizing the appeal.
    As a general rule the right of appeal is purely statutory and can be taken only from such judgments as are designated, expressly or impliedly, by the statute authorizing the appeal, and it must he taken -within the time and in the mode .prescribed. Parties cannot appeal by their own act where no appeal is authorized by law, nor can they create a right of appeal.
    Appeal by the defendant, Dorr Russell, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in the office of tlie clerk of the county of Otsego on the 2Ytli day of January, 1893, and an appeal by the defendants, Dorr Russell, as executor, etc., and others, from said judgment and from an order made at the Otsego County Special Term on January 17, 1893, amending and settling the judgment herein.

      Johnson <& Lamb and E. M. Earris, for the appellants.

      George M. Werner and A. If. Bea/rdsley, for the respondent.
   Martin, J.:

This action ^as in the nature of a Creditor’s bill. A portion of the relief sought was that an accounting should be ordered to be made by the estate of Lucy G. Russell of the railroad stocks, bonds, securities and other property deposited with Edward C. Clark and transferred to her, and of the proceeds and avails thereof, and all other moneys and property received by her directly or indirectly from Dorr Russell, and of the rents, issues and profits thereof, and that if it should appear that Lucy G. Russell paid anything from lier own separate estate for the Bowers’ mortgage and that her estate should be credited and allowed the moneys so paid, then that an accounting, should be ordered and an account be taken of the moneys so paid, and also of the moneys, income, property and profits received by her, or by any other person for her use, or by the defendants, of either of them, and of the balance (if any) remaining unpaid and due to her, or her estate, to the end that the said farm or property might be sold subject to her lien for such unpaid balance, and the proceeds applied to the payment of the plaintiff’s judgment; that upon such accounting the defendants and the estate of Lucy G. Russell be charged with any or all moneys or property paid by Dorr Russell directly or indirectly for the Clark mortgage, and with the railroad stocks, bonds, securities and other property deposited by Russell with Clark, and subsequently delivered to Lucy G. Russell, or to or for her benefit.

The referee found, as a conclusion of law, that the plaintiff was entitled to the accounting demanded in her complaint, and the judgment entered upon such report contained a provision' to that effect.

The appellants in their brief claim that the judgment directed by the referee, and entered upon his report, is not final, but a mere interlocutory judgment. We think this contention must be sustained. Some of the earlier cases seem to hold a contrary doctrine, but the case of Dorchester v. Dorchester (121 N. Y. 156), which is the latest case that has come to our notice, is so nearly like the case at bar that we must either disregard that case as an authority, or hold with the appellants that the judgment appealed from is interlocutory, and not final. We think the judgment must be treated as interlocutory.

Therefore, at the threshold of the investigation off this case, the question presents itself whether an appeal could properly be taken from such a judgment. It not being a final judgment, it was not appealable under the provisions of section 1346 of the Code of Civil Procedure. And as an inspection of the judgment shows that it was not rendered at a Special Term, Circuit or trial term of this court, but upon the report of a referee, it was not appealable under the provisions of section 1349 of the Code as it stood when this appeal was taken. It appears from another appeal book, which was handed up on appeal from an order made by the Special Term in this case, that the form of the judgment was settled by the Special .Term, and leave given to enter it as the judgment upon the referee’s report in the action, but there is nothing in the appeal book furnished us on the appeal from the judgment in this case which discloses the existence of any such order. Even if we were to assume, which we think we cannot, that the order should be considered in determining whether the judgment appealed from was entered upon the report of a referee, or entered at a Special Term of this court, yet, it is quite obvious that the order of the Special Term, at most, determined the form of the judgment to be entered upon the report; that the report of the referee was the basis of the judgment, and that it was not rendered at a Special Term within the meaning of section 1349 of the Code, but rendered upon the report of a referee.

Assuming then, as we think we must, that the judgment was entered upon the report of a referee, and that it was interlocutory and not final, it is quite manifest that the only method of reviewing it which existed when this appeal was attempted to be taken was by a motion for a new trial upon the exceptions under section 1001 of "the Code.

"While section 1349 of the Code has since been amended by an act passed May 6, 1893, to take effect the 1st of September, 1893, so as to give the right of appeal from a judgment thus entered, yet, as the appeal in this case was taken in March of that year, the defendants had no right to appeal from such a judgment under the statute as it existed at the time when the appeal in this case was taken. Under these circumstances .we see no way to properly dispose of this case, except to dismiss the appeal.

Although the respondent has .raised no question as to the appellants’ right to appeal, we are unable to perceive how such omission confers upon this court authority to determine the question sought to be.reviewed in the absence of any law authorizing the appeal. As a general rule, the right of appeal is purely statutory, and can be taken only from such judgments as are designated, expressly or impliedly, by the statute authorizing the appeal, and it must be taken within the time and by the mode prescribed. Parties cannot appeal by their own acts where no appeal is authorized by law, nor can they, by their own acts, create a right of appeal, as jurisdiction of appeals is created by law. To permit parties, to create such a right would be a violation of the rule that parties cannot create jurisdiction of the subject by consent. (Elliott’s Appellate Procedure, §§ 15 et seq.) This question is not one of mere irregularity, but relates to the right of the party to appeal from . such a judgment, and, hence, to the authority of this court to determine the questions involved. The question is not one of practice, but of power; is not one of discretion, but of jurisdiction.

In Kundinger v. City of Saginaw (59 Mich. 355, 364) it was held that the right to appeal from one tribunal to another is statutory. In Kramer v. The Cleveland & Pittsburgh Railroad Co. (5 Ohio St. 140, 147), in discussing the question of the determination of freeholders in condemnation proceedings, it was said : “ It might have been. more judicious to have provided for reviewing their determination. But this was a matter of legislative discretion,, not to be revised by the judiciary.” In City of Minnieapolis v. Wilkin (30 Minn. 140, 144) it was said: The right of appeal is purely statutory, and does not exist when not given by statute. Indeed, it has been held that an existing right of appeal may be taken away, by repeal of the statute, even as to causes previously appealed,” citing Ex parte McCardle (7 Wall. 506). It was held in State v. Meeker (19 Neb. 444) that the right of review by appeal or proceedings in error is a statutory one, citing Wilcox v. Saunders (4 Neb. 569) and The State v. Ensign (11 id. 531). In Ex parte Ferry Co. (104 U. S. 519) Waite, Ch. J., said: “ If there is jurisdiction, and no provision for appeal or writ of error, the judgment of the trial court is the judgment of the court of last resort, and concludes the parties.” Many other cases in different Commonwealths might be cited to sustain the general doctrine that the right of appeal exists only when conferred by statute, and can be taken only in the time and mode prescribed.

It is, however, unnecessary to rely. upon this general principle relating to appeals, as the case of Dorchester v. Dorchester (121 N. Y. 156) is a direct authority upon the precise question under consideration. In that case it was held that the provisions of the Code of Civil Procedure (§ 1349) as to appeals to the General Term from interlocutory judgments, does not authorize that court to review, upon the facts, an interlocutory judgment entered upon the report, of a referee. A motion at the General Term for a new trial after entry of an interlocutory judgment, upon the report of a referee as authorized by the Code (§ 1001), brings up only questions of law. Before the case can be reversed by the General Term upon the-facts, where an interlocutory judgment has been so entered, there must be a final judgment, and then the law and facts may be-reviewed on appeal therefrom. (§§ 1301, 1316, 1317, 1336, 1337.) In that case there was an appeal to the General Term from an interlocutory judgment entered upon the report of a referee, which was very similar to that in this case, and there was also a motion for a new trial, and the General Term reversed the judgment, the order of reversal stating it was upon the facts, and it was held that the-order was unauthorized as the court had no power to review the facts; that as the order was an actual determination of the General Term, although, made without power, it was reviewable in the Court of Appeals, and that as it appeared from the order that the court below had not exercised the power it did possess of reviewing the judgment-for an error of la-w upon a motion for a new trial, the order should be reversed and the case remanded to the General Term for a hearing upon the questions of law. In delivering the opinion in that case Judge O’BrieN says: “ Certain interlocutory judgments may also be reviewed by the General Term on appeal taken in pursuance of the provisions of section 1349, but this section does not authorize the General Term to review an interlocutory judgment entered upon the report of a referee.” That case seems to be decisive of the question under consideration, and as there was in this case no motion for a new trial under section 1001 of the Code, the case is not properly before us and the defendants’ appeal must be dismissed. (Knowlton v. Atkins, 134 N. Y. 313, 322; Bullion v. Bullion, 73 Hun, 437.)

HaRdiN, P. J., and MerwiN, J„ concurred.

Appeal dismissed, with costs.


author: Hardin, P. J.:

text:
    Joab L. Clift, as Surviving Partner, etc., Respondent, v. Mary E. Moses and Others, Appellants.

      •Creditor's action —fraudulent transfer of property allowed to stand as security for the actual debt — absence of a finding of fraud — reference to take an account — interest — when alloioed on unliquidated items — how computed.

    In an action brought by a judgment creditor to set aside, as fraudulent, a transfer of property made by the judgment debtor to his wife, the trial court found, upon sufficient evidence, that such transfer, made in settlement of his wife’s claim against him, was made with fraudulent intent on the part of the assignor, and it refused to find that the wife accepted and received the property without any intent to defraud the creditors of her husband.
    It was claimed upon the trial that the transfer of property, worth $22,500, was made in payment of an indebtedness of some $23,000, then claimed to be owing by the husband to the wife. The evidence failed to establish an indebtedness to the extent claimed by the defendants, bu,t warranted the conclusion of the trial judge that the indebtedness at that time was but $12,157.18.

      Held, that, under the circumstances, the trial court was authorized, in the exercise of its equity jurisdiction,-to permit the transfers to stand as security for the indebtedness actually existing in favor of the transferee;

      That the plaintiff was entitled to relief, although there was no affirmative finding' of fraud or fraudulent intent on the part of such transferee;
    That it was proper, by such judgment, to appoint a receiver and to order an accounting before a referee, and to move for a further judgment upon the coming in of the report of such referee.
    Although upon an account taken in such an action between the judgment debtor and his wife some of the items were unliquidated, it must be assumed that the parties, at the time of the transfer of property from the husband to the wife, so far adjusted the claims and attempted to pay the indebtedness by such transfer that from such time the creditor was entitled to interest upon the balance ascertained.
    It is in-accordance with well-established precedents for a trial judge to direct a referee, in stating the account between two parties, to take into consideration interest on the items.
    Where a referee was directed by an interlocutory judgment to state an account between two parties, and to take into consideration interest on the items, the referee should state the account upon the principle of partial payments, notwithstanding the fact that a computation of interest under “the merchant’s rule ” is not usurious and may be adopted by parties who agree thereto.
    Appeal by the defendants, Mary E. Moses and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 9th day of December, 1892, confirming the report of a referee, with notice of an intention to bring up for review upon such appeal the interlocutory judgment entered in said clerk’s office on the 30th day of October, 1891, adjudging that certain transfers of real and personal property made by Lucien Moses to Mary E. Moses were fraudulent and void.
    June 18, 1880, plaintiff brought an action against Lucien Moses and another on certain promissory notes made by Moses and Dodge and recovered a judgment thereon which was affirmed by the Court of Appeals. (See Glift v. Moses, 112 N. Y. 426.) Executions were issued upon the judgment and returned wholly unsatisfied, and this creditor’s action was commenced to set aside the transfers of certain real and personal property made by Moses on the 2d of September, 1880, to his wife, the complaint alleging that the transfers were fraudulent. The answer denies the allegations of fraud, and sets up that the transfers and conveyances wore made in liquidation, of an indebtedness on the part of the husband to the ¡wife which was carried into a settlement and adjusted simultaneously with the execution of the conveyance and transfers to the wife. The issues were brought to trial at Special Term, and the court found that the transfers of property by Lucien Moses to bis wife were made with intent to defraud Iris creditors, and refused to find thattlie transfers were accepted by the defendant Mary E. Moses without any intent to defraud the creditors of Lucien Moses. The court found that when the transfers were made in September, 1880, he was only indebted to her in the sum of $12,151.18, and allowed the defendant Mary E. Moses to hold the property transferred as security for the debt of her husband to that extent, and ordered an accounting before a referee. The deeds of the real estate were not recorded until after the verdict was recovered in the action upon the notes which evidenced the indebtedness of Moses and Dodge to the plaintiff. This action was brought in the fall of 1884, and was brought to a trial in 1890, and Mary E. Moses had disposed of a large amount of the property which was transferred to her, and had received on account of the property so transferred ijents, profits and income. The referee found, after stating the account, that the defendant Mary E. Moses had received from the property transferred and disposed of by her, and from the rents, profits and income thereof, $518.70 more than sufficient to pay the indebtedness of $12,157.18, and the interest thereon from September 2, 1880, and that there was real estate and personal property so transferred to her remaining undis-posed of. Exceptions were filed to the referee’s report, and, after hearing the parties, the court overruled the exceptions and ordered judgment in accordance with the findings of the referee.

      Jenney, Brooks, Marshall c& Huger, for the appellants.
    Kennedy, Traoy, Mills <& Ayling, for the respondent.
   Hardin, P. J.:

Upon sufficient evidence the trial court has found that the transfers made on the 2d day of September, 1880, by Lucien Moses, the judgment debtor, to his wife, Mary E. Moses, in settlement of her claims against her husband, were with a fraudulent intent on the part of tire husband. And he has refused to find that the wife accepted and received the property without any intent to defraud his creditors. It was claimed upon the trial that the transfers of property worth $22,500 were made for the payment of an indebtedness of some $23,000, then claimed to be owing by the husband to the wife. The evidence failed to establish such ail indebtedness to the extent claimed by the defendants; on the contrary, the evidence warranted the conclusion of the trial judge that the indebtedness at that time was only $12,157.18. It, therefore, appears that the transfers were not made for a full, adequate and sufficient consideration. The circumstances disclosed by the evidence in the case induced the court, in the exercise of its equity jurisdiction, to permit the transfers to stand as security for the indebtedness actually existing in favor of the transferee. The relief thus granted was in accordance with the rule laid down by Chancellor Kent in Boyd v. Dunlap (1 Johns. Ch. 478), which was approved and followed in Friedman v. Hirsch (18 N. Y. Supp. 85).

In Clements v. Moore (6 Wall. 312) Swayne, J., said, in speaking of a somewhat similar case : The equity appealed to — while it scans the transaction with the severest scrutiny — looks at all the facts, and, giving to each one its due weight, deals with the subject before it according to its own ideas of right and justice; * * * it allows a security to stand for the amount advanced upon it.” The doctrine is stated and applied in Bigelow v. Ayrault (46 Barb. 143), and is recognized in Van Wyck v. Baker (16 Hun, 169); Pond v. Comstock (20 id. 493).

"We are not willing to assent to the contention of the appellant that, in the absence of an affirmative finding of fraud or fraudulent intent on the part of Mary E. Moses, the plaintiff is entitled to no relief.

Dudley v. Danforth (61 N. Y. 626) was an action at law and upon an entirely different state of facts, and there was a finding in that case “ that the purchase and sale was made in good faith for the purpose of paying to plaintiffs an honest debt owed by Edget to them.”

Parker v. Conner (93 N. Y. 118) was an action at law and there was evidence tending to prove that the plaintiff paid “ a valuable and adequate consideration for the chattels in question.”

In Murphy v. Briggs (89 N. Y. 447) the mortgage -which was allowed to remain was shown to be for a valid indebtedness, “ and there was no ground for claiming that such transfer was invalid,” as to the attacking creditor.

(2) It is insisted in behalf of the appellants that Lucien Moses, the husband, was primarily liable to support and maintain his wife, and that she was not, in law, bound to bear the burden of her maintenance or the living expenses incurred by either of them out of her separate property; and our attention is called to Hendricks v. Isaacs (117 N. Y. 411); Maxon v. Scott (55 id. 241); Hallock v. Bacon (45 N. Y. St. Repr. 484); Winkler v. Schlager (64 Hun, 83), which cases recognize the obligation of a husband to support and maintain his wife. It is also contended by the appellant that a preexisting indebtedness furnishes a proper foundation for the transfer of property, and he calls our attention to Murphy v. Briggs (89 N. Y. 446); Seymour v. Wilson (19 id. 421); Pond v. Comstock (20 Hun, 492; S. C. affd., 81 N. Y. 627); Bank v. Fitch (48 Barb. 344). And he also calls our attention to Hale v. Stewart (7 Hun, 591) where a conveyance was upheld to a creditor by his debtor to secure a bona fide debt, although the debtor was left with no other property from which another creditor could enforce payment of a debt; and to Carpenter v. Muren (42 Barb. 300) to the same effect; and the same doctrine stated by this court in Bishop v. Stebbins (41 Hun, 247); and to Syracuse Chilled Plow Co. v. Wing (85 N. Y. 421), where it was held that money received by the husband at a time when he could have claimed it jure ma/riti furnished a foundation for a conveyance to his '(rife, and insists that the whole of the claims included in the settlement of 1880 should be allowed. In speaking of some of the items charged in the account which were rejected in the thirteenth finding of fact the court says: That all of these moneys are claimed to have been paid out, but the parties are uuable to give any definite account of the way they were disposed of. That they -were used in part for living expenses and in part for the benefit of the separate estate of the wife, but no credit was given to the husband for such expenditures for the benefit of said separate estate.” It is further found that there was no understanding or expectation that the husband should ever account for or pay over to the wife, the said amounts of interest and rents mentioned in the last finding, so received and expended, or that the same should ever constitute an indebtedness between them, and the same and the interest thereon was improperly included in said account. That the payments made on account of the wife’s' separate property mentioned in the last finding equal the small items for property sold, and the latter was not properly included in the account.” The evidence warranted the finding on tlie part of tlie court that tlie moneys received by the husband from the wife from her income were expended with her knowledge and consent to defray the expenses and maintenance of the two; and in eliminating the moneys derived from her from the settlement of September 2, 1880. (Hendricks v. Isaacs, 117 N. Y. 411 ; Smith v. Smith, 125 id. 229; Patterson v. Hill, 61 Iowa, 534 ; Gleghorne v. Gleghorne, 118 Penn. St. 383; Hinney v. Phillips, 50 id. 382; Clark v. Rosenkrans, 4 Stew. [N. J. Eq.] 665 ; Edelen v. Edelen, 11 Md. 415 ; Johnston v. Johnston's Admr., 31 Penn. St. 450.)

We think the evidence before the trial court fully warranted the conclusion reached by it in cutting down the claims of Mary E. Moses to the sum of $12,157.18, as stated in the findings of the court, and that “ said conveyances and transfers of real and personal property and cash made and executed by said defendant Lucien Moses, to said defendant Mary E. Moses, on and about September 2, 1880 * * * were, and each of them is, fraudulent and void as against the plaintiff and his said judgment and claims and should be vacated and set aside ; ” and in finding also, as a matter of law “ that the defendant Mary E. Moses is entitled to hold said deed and conveyances of real estate and transfers of personal property and cash, as security only for the said indebtedness existing from said Lucien Moses to her at the time thereof, to wit, $12,157.18, and interest thereon from Sept. 2, 1880, less any sums found due from her upon the accounting herein,” and that it was proper to appoint a receiver and to order an accounting before a referee, and to move for a further judgment upon the coming in of the report of the referee. (Coleman v. Burr, 25 Hun, 239 ; S. C. affd., 93 N. Y. 18 ; Remington Paper Co. v. O’ Dougherty, 36 Hun, 86.)

In Third National Bank v. Guenther (123 N. Y. 568) in considering an agreement made by a wife to support the family, it was said by the court that “ she has the right to perform it, and having done so, she could not undo what had been done by recalling what she has paid or requiring the husband to reimburse her.”

(3) Although some of the items which were allowed and included in the balance ascertained by the trial court and stated at $12,157.18, were unliquidated, it must be assumed that the parties at that time so far adjusted the claims, and attempted to pay the indebtedness to the wife by the transfers, that from the time of the transfer she was entitled to interest upon the balance as thus ascertained. (Robinson v. Stewart, 10 N. Y. 189.)

(4) It was in accordance with well-established precedents for the trial judge to direct the referee in stating the'accounts of the parties to take into consideration interest on the items. In Butler v. Stoddard (7 Paige, 163) the chancellor in ordering a reference to the master in a case somewhat analogous to this, directed him to allow interest as shall be just.” That case was affirmed by the Court of Errors (20 ’Wend. 509), and is referred to approvingly by Judge Denio in Robinson v. Stewart (supra).

Appellants complain of the mode of computation of interest adopted by the referee, which was the mode prevailing among merchants charging and crediting interest on the items on either side under the rule denominated “ The Merchants Rule ” which is stated in Stoughton v. Lynch (2 Johns. Ch. 209).

In Hart v. Dewey (2 Paige, 207) it is said that the mercantile mode of computation in cases of running accounts is the more convenient mode, and that it is not usurious and may be adopted by parties who agree thereto. In the case before us there is no agreement of the parties upon which the mercantile mode adopted by the referee can rest. The referee was requested in stating the account to do 'so upon the principle of partial payments,” and an exception was taken to his refusal. It seems reasonable that Mrs. Moses should, upon the $12,157.18, receive interest computed under the partial payment rule (see Connecticut v. Jackson, 1 Johns. Ch. 16); and that she should be allowed interest upon the sums expended for taxes, necessary repairs and the items with which she is credited in the report. (Peyser v. Myers, 18 N. Y. Supp. 744, and cases cited.)

In Mann v. Lawrence (3 Bradf. 424) it was held proper to credit an executor with interest on sums expended out of his own money to discharge claims for the benefit of the estate held by him. This rule seems to us equitable and just; and that when Mrs. Moses received moneys from the estate she should be permitted to take therefrom the expenditures made by her, with proper, allowance of interest, and the balance of the sum received by her should be applied in extinguishment of the indebtedness held by her (Cow ing v. Howard, 46 Barb. 584); and if tbe receipt and payment took place at the same time one sum should be allowed to compensate the other as far as it goes.” (Morton & Ludlow v. Western, 5 Paige, 519.)

The interlocutory decree should contain a provision directing the accounting and allowance of interest upon the rule relating to partial payments.

The interlocutory judgment must be modified so that it shall contain such a provision.

Martin and Merwin, JJ., concurred..

Interlocutory judgment modified, as stated in the opinion, and, as so modified, affirmed.

Order confirming the report of .the referee and final judgment reversed, with costs of the appeal to the appellant payable out of the fund, and report sent back to the referee to amend after computing interest under the rule as to partial payments.


text:
    Louis S. Hanauer, Appellant, v. The City of Utica, Respondent.

      Common council minutes — their presentation to the mayor for his action thereon — when a veto is in time — a conversation with the mayor will not set the time running.

    The clerk of the common council of the city of Utica did not deliver to the mayor of that city a certified copy of the minutes of such common council passed May sixteenth, until June twenty-ninth or thirtieth, and certain resolutions in them were vetoed by the mayor July first. The city charter required the mayor, if he did not approve of a resolution, to return it with his objections within six days.

      Held, that his veto was in time, and operated to defeat the resolutions;
    That a talk of such clerk with the mayor on the subject of presenting a certificate did not operate to set the time running within which the mayor was to act.
    Appea l by the plaintiff, Louis S. Hanauer, from a judgment of the County Court of Oneida county in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 11th day of August, 1893, upon the verdict of a jury for $64.50, rendered by direction of the court, upon an appeal by the defendant from a judgment of a justice of the peace of the town of 'W’hitestown, Oneida county, in favor of the plaintiff.

      Tbis action was brought to recover a quarter’s salary alleged to be due the plaintiff as clerk of the board of excise of the city of Utica, pursuant to certain proceedings of the common council of the city of Utica had on May 16, 1892, which were, in part, as follows:
    “ Aid. Hackett moved that the salaries of the commissioners be fixed at $500 each per annum. .Aid. McCucken moved to strike out $500 and insert $250.
    “Yeas.— Aid. Clark, Dowd, Meyer — 3.
    “ Nays.— Aid. Beatty, Boyce, Corcoran, Hackett, Jones, Roberts, Tessey,'Welch — 8. Lost.
    “ Aid. Jones moved to table the matter till the report of the committee on investigation is received.
    “Yeas.— Aid. Clark, Dowd, Jones, Meyer — 4.
    “ Nays.— Aid. Beatty, Boyce, Corcoran, Hackett, Roberts, Tessey, Welch — 1. Lost.
    “ Aid. Clark moved to amend by striking out $500 and inserting $400. Lost.
    “ Motion of Aid. Hackett adopted by the following vote :
    “ Yeas. — Aid. Beatty, Boyce, Corcoran, Hackett, Roberts, Tessey, Welch — 1.

    “Nays. — ’Aid. Clark, Dowd, Jones, Meyer, the President — 5.”
    The charter of the city of Utica, as amended by. section 11 of chapter 14 of the Laws of 1890, was as follows:
    “ Every ordinance or resolution of the Common Council * * * shall, before it takes effect, be presented, duly certified by the city clerk, to the mayor; if he approves of it he shall sign it, in which case it shall take effect immediately thereafter unless otherwise ordered therein. If he does not approve of it, he shall return it with his objections in writing to the city clerk’s office, within six days after he has received it. * * * If such ordinance or resolution shall not be returned by the mayor within six days after he has received it, it shall take effect in like manner as if he had signed it.”

      Pees E. Thomas, for the appellant.

      Josiah Perry, for the respondent.
   Hardin, P. J.:

Plaintiff was clerk of the board of excise of the city of Utica, and brings this action to recover for a quarter’s salary, which fell due August 1, 1892. At the close of the evidence the court refused to submit to the jury the question “ as to whether or not the minutes containing the resolutions ” of the common council adopted at its meeting of May 16, 1892, “were duly presented by the clerk to the mayor,” as claimed by plaintiff. Ye think no error was committed by the court in denying the request. Confessedly, the clerk of the common council did not deliver to and leave with the mayor a certified copy of the minutes, under his seal, prior to the last days of June, twenty-ninth or thirtieth, and the minutes and resolutions therein were not approved at any time prior to those days; nor did the resolutions of the sixteenth of May become operative because not returned by the mayor prior to July 1, 1892, with or without his objection. His objections to the resolutions favoring the salary of the excise commissioners were timely when made by him in his veto message of July 1, 1892.

Inasmuch as the clerk of the common council certified the proceedings of May 16, 1892, on the thirtieth of June, the time had not expired for the mayor to veto when his veto message was given. The talk of the clerk at a prior date with the mayor upon the subject of presenting a certificate, did not operate to set the time running in which the mayor was to act. The resolution of the 16th of May, 1892, therefore, never became operative, as after the veto it was not again passed by the common council. The attempt to pass it over the veto failed July 1, 1892, as only five votes favored it and seven votes were cast against it. At that meeting the salaries of the commissioners were fixed at $250 per annum. The clerk of the board of excise was appointed by the board of excise pursuant to chapter 401 of the Laws of 1892. The board had no power to fix his salary beyond the sum fixed by the common council for one of their number. (§ 10, Laws of 1892, chap. 401.) Inasmuch as the salary of the commissioners was fixed at $250 each per annum, that was the only compensation per annum the clerk of the board of excise wras entitled to receive. The verdict gives him that amount, to wit,, sixty-two dollars and twenty-five cents and interest, and it was properly directed by the County Court of Oneida county, and the judgment entered thereon, I think, should be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs to respondent.


author: Dykman, J.:

text:
    Thomas W. Case, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Railroad crossing — failure to home cattle gua/rd, gate or flagman- — -not negligence unless required by statute — absence of, not to be considered by the jury — 'penalty.

    Upon the trial of an action brought to recover damag'es alleged to have resulted from injuries to a horse and wagon struck by the defendant’s locomotive, the defendant requested the court to charge the jury that it owed no duty to station a flagman or maintain gates or a light at a highway crossing, and that ' negligence could not be predicated of the omission. In reply the court stated that he would leave that to the jury.
    The plaintiff’s counsel asked the court to charge the jury that it might find negligence from the absence of a light, or gate, or flagman, or some warning.
    The court substantially so charged.

      Held, that the refusal to charge as requested, and the charge as made, were both erroneous.
    The statute which requires the construction of a cattle guard at a railroad crossing' declares the penalty for a failure to comply with its requirements, and such penalty does not include damages for injuries to personal property.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 29th day of September, 1893, upon the verdict of a jury for $165, after a trial at the Rockland County Circuit, and also from an order entered in said clerk’s office on the 11th day of October, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      This action was brought to recover damages alleged to have been sustained by the plaintiff while driving along a public highway with a horse and buggy, by reason of the failure of the defendant to provide gates or a flagman at a railroad crossing, and of its failure to maintain cattle guards or a light thereat. The horse which the plaintiff was driving got upon the track of the roadbed of the railroad south of the highway, and the wagon was struck by a locomotive and injured, the horse being also injured.

      Herbert H Kimvey, for the appellant.

      A. 8. Tomplcms, for the respondent.
   Dykman, J.:

Upon the trial of this action the counsel for the defendant requested the court to charge the jury that the defendant owed no duty to station a flagman or maintain gates or a light at the highway crossing, and that negligence could not be predicated of the omission, and in reply to that request the court said: “ I will leave that to the jury.” The defendant excepted.

“Plaintiff’s OouNSEL.— I ask the court to charge the jury that they may find negligence from the absence of a light, or gate, or flagman, or some warning.
“ The Couet. — -1 have submitted that question as a matter of fact to the jury. If the jury say that the circumstances, the manner in which this road crossed the railroad, and the position of the railroad south of the crossing, are such that they would be liable to mislead people in the ordinary use of the highway so that they would be likely to stray upon the railroad track, then it is for the jury to say whether or not it was negligence not to have either a cattle guard there or some person 'to warn people to keep them from straying into this dangerous place. [Defendant excepts.] ”

The refusal to charge as requested and the charge as made were both erroneous. It was thus left to the jury to determine that the company was under obligation to maintain a flagman, gate, light or cattle guard at the crossing in question, and that the failure to do so was negligence. Such a rule has been condemned in many cases. The duty of posting flagmen, or having servants and agents, or placing gates or other obstructions, or of giving special or personal notice to travelers at railway crossings, can 'only be imposed by the Legislature. Courts and juries cannot, whatever may be thought by them of the convenience or necessity of such or other like precautions, at particular crossings, hold .the company to provide them under the penalty of being charged with negligence for the omission.” (Weber v. N. Y C. & H. R. R. R. Co., 58 N. Y. 451-459.)

“ ’Whether there is negligence depends upon the degree of care required and given in each particular case, irrespective of any particular mode. Whether the care was by a flagman, by gates, or by any other equivalent mode, is of no importance. If it were established as law that the omission of any particular act, which, from the amount of travel at crossings, a jury might think reqidred by the public safety, was negligence, a railroad company would never know when it was safe from that imputation. For, no matter how carefully it observed the requirements of the statute, or conducted itself in other respects, if it omitted any one act which the caprice, or sympathy or prejudice of the jury might think required for the public safety, the omission would constitute negligence, and subject it to all the consequences.” (Beisiegel v. N. Y. C. R. R. Co., 40 N. Y. 9-26.)

“ The defendants had no flagman at the crossing in question, and the plaintiffs claim that this was negligence in the defendants. While, on the other hand, the defendants requested the court to charge that the defendants were under no legal obligations to station a flagman or signalman at the crossing in question. This was refused, and to the refusal, and to various parts of the charge on this subject, the defendants excepted. * * *

I apprehend that railroad companies do not run their trains under the pressure of any such rule of law, and that the means which it is their legal duty to employ to prevent third persons from sustaining injury are not dependent upon any such broad discretion legally intrusted to a jury.” (Grippen v. N. Y. C. R. R. Co., 40 N. Y. 34-41.)

“ Under such a charge the jury might find a flagman was a proper precaution', or gates, or that a man should run in front of the cars, or anything else which should commend itself to the judgment of the jury. Such has been held not to be the measure of liability of a corporation in tbe situation of defendant.” (Cumming v. Brooklyn City Railroad Co., 104 N. Y. 671, 672.)

“ A railroad company is not bound and owes no duty so to station a flagman, and negligence cannot be predicated of the omission. * * *

Tbe final charge in this case left to tbe jury whether tbe company was or was not bound to have a flagman at tbe crossing, and whether the defendant should have had one there, and so permitted tbe jury to predicate negligence upon tbe omission. * * * For this error we think there should be a new trial.” (Houghkirk v. President, etc., D. & H. C. Co., 92 N. Y. 219-228.)

These lengthy quotations are made because they manifest so clearly the error assigned by tbe defendant upon this appeal.

In relation to the cattle guards the error is equally apparent. The statute which requires their construction declares the penalty for a failure to comply with its requirements, and the damages which the plaintiff seeks in this action are not included in such consequences. (Knight v. N. Y., L. E. & W. R. R. Co., 99 N. Y. 28.) The judgment and order denying tbe motion for a- new trial on the minutes of tbe court should be reversed and a new trial granted, with costs to abide tbe event.

Cullen and Peatt, JJ., concurred.

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


text:
    Mary Fay Fleming and Others, Plaintiffs, v. Phœnix Assurance Company of London, Defendant.

      Wire insurance policy — appraisal under conclusive — functions of appraisers.

    An appraisal of loss made by two appraisers duly appointed under the provision of a standard fire insurance policy, when their award is made in writing and signed by them, is conclusive and binding upon both parties. The functions of such appraisers are to estimate and appraise the loss by personal examination; they have no power or authority to take testimony.
    Motion by the plaintiffs, Mary Fay Fleming and others, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, by an order made after the verdict of a jury for forty dollars, rendered by direction of the court, in favor of the plaintiffs, at the Kings County Circuit on the 7th day of March, 1892.

      Flamen B. Gaudier, for the plaintiffs.

      Geo. A. Strong, for the defendant,
   Dykman, J.:

This is an action upon a policy of fire insurance to recover for damages by fire to the property insured.

The cause was tried at the Circuit where a verdict was directed in favor of the plaintiff for forty-five dollars and seventy-six cents, and the exceptions were directed to be heard at the General Term in the first instance.'

The policy is the usual standard fire policy and contains this provision : In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire, and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expenses of the appraisal and umpire.”

Under that provision appraisers were appointed who appraised the damage at forty dollars.

It seems to be the theory of the plaintiff that an action may be maintained upon the policy independently of the award of the appraisers; that the appraisement may be ignored and the whole question opened and litigated as if no valuation of the loss had been made.

It’ must be observed that although some attack is made upon the appraisers and their mode of procedure, yet it is not sought to avoid their award.

"We think the appraisal was conclusive and binding upon both parties. After the provision for an umpire, if the two appraisers cbosen by tbe parties fail to agree, it is stated that “ the award, in writing, of any two shall determine the amount of such loss.”

Although an umpire was selected in this case, to be called in if the two appraisers failed to agree, yet they did not so fail, and his services were not required.

The award was made in writing and signed by the two appraisers.

That was much more than an idle ceremony. It was a judicious method of composing a controversy in a cheap and expeditious manner.

There can be no advantage derived by the selection of the appraisers, for each party chooses one, and, if it becomes necessary, they and not the parties select the umpire.

The method insures the selection of men competent and qualified for the service, and it must be borne in mind that they are appraisers and not arbitrators. Their function is to “ estimate and appraise the loss” by personal examination and observation. They have no' power or authority to take testimony, and their doing so is not contemplated.

"While we think the case will stand firmly upon the award, and the defendant has a legal right to its protection, we are also satisfied that in this particular case the award was ample for the loss sustained. The cláim has a very suspicious aspect. Even the friend of one of the plaintiffs, who seems to have been a very fair and just man, could discover but small traces-of fire upon the buildings. The husband of one of the plaintiffs testified that the appraisers said they could see no damage.

The exceptions should be overruled and judgment should be entered upon the verdict.

Pbatt, J., concurred; OulleN, J., not sitting.

Exceptions overruled and judgment directed upon the verdict for the plaintiffs, with costs.


text:
    John A. Cross, Appellant, v. The Long Island Loan and Trust Company and Others, Respondents.

      Increase in the mlue of the securities of an estate, not pt'ofit — word “profit”

    Where a fund represents an increase in the value of the securities of an estate it is not profit. It is an accretion or increase from natural causes.
    Profit is the gain above expenditures arising from some transaction or operation.
    Appeal by the plaintiff, John A. Cross, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 22d day of May, 1893, upon the decision of the court rendered after a trial at Special Term, dismissing the complaint upon the merits, and adjudging, among other things, that the sum of $29,500 received by the defendant upon the sale of certain securities, was neither rents, income, issues or profits, and constituted a portion of the corpus of a trust estate created by the provisions of the last will and testament of John A. Cross, deceased. ' ’
    John A. Cross died leaving a last will and testament, containing the following provision: “ Ninth. All the rest, residue and remainder of my estate, real and personal, I order and direct my said executors to divide into five equal parts or shares. * * * I give, devise and bequeath one of said five shares or parts to my said executors, and to the survivor of them, to have and to hold the same upon the following trusts and for the following purposes, namely, to receive the rents, income, issues and profits thereof, and to apply the same to the use of my son, John Arnold Cross, for and during his natural life, and at his decease to pay over, transfer, assign and convey the said share or part to his heirs at law to have and to hold the same to them and their heirs forever.”
    The complaint alleged that the defendant the Long Island Loan and Trust Company had been duly appointed trustee under said last- will and testament, and that in addition to the sum paid over to the plaintiff as the income of one-fifth part of the rest, residue and remainder of the testator’s estate the said Long Island Loan and Trust Company had received large sums of money which were the issues and profits of tire said share of said estate, directed by said will to be set apart and applied to his use, which sums the said trust company, although requested so to do, had refused to pay over to the plaintiff.
    The answer of the defendant the Long Island Loan and Trust Company alleged the selling of certain bonds belonging to such trust fund for $129,500, besides interest, and that $29,500 of such amount represented the premium received above the par value of such bonds, and that such amount formed part of the corpus of the trust estate,’and could not be properly paid to the plaintiff as the life tenant.

      Martin J. Keogh, for the appellant.

      William M. Ingraham and Albert G. McDonald, for the respondents.
   Dykman, J.:

This is an appeal from a judgment entered upon the findings of a judge after a trial at the Special Term.

The action was brought to obtain a construction of the will of John A. Cross, deceased, and the question involved is whether the sum of $29,500, received by the trust company for premiums on the sale of certain securities belonging to the estate of the testator, constitutes a profit within the meaning of the word as it is employed by the testator, and, therefore, belongs to the life tenants, or whether it forms part of the corpus of the estate and belongs to the remaindermen.

The fund in question represents the increase in value of the securities, and is, therefore, not profit in the ordinary acceptation of that term. It is an accretion or increase from natural causes.

Profit is acquisition of gain above expenditures arising from some transaction or operation. Under this will there was to be no traffic or operations, but only an investment of the fund.

A decision of the surrogate of New York that an enhancement of the value of United States bonds held in trust went to the remain-derman, and not to the life tenant, was approved by the Court of Appeals in the Matter of Gerry (103 N. Y. 445), and that case seems, also, to be decisive of this. The Matter of Clark (62 Hun, 275), Bergen v. Valentine (63 How. Pr. 225), and Duclos v. Benner (62 Hun, 428), are all authorities to the same effect.

The judgment should, therefore, be affirmed, with costs.

CulleN and Pratt, JJ., concurred.

Judgment affirmed, with costs.


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    Robert G. Eccles, Respondent, v. William Radam, Appellant.

      Libel — proof of repetition of the libel or of other libels-after action begun — what objection is sufficient.

    Upon the trial of an action for libel neither the repetition of the libel nor the publication of other libelous matter after the commencement of the action is admissible for any purpose.
    A general objection to testimony without the assignment of any ground or reason therefor is not available on appeal except where the objection, if properly made, could not have been obviated.
    An objection to the reception of evidence is not general which specifies the grounds thereof as immaterial and as having nothing to do with the case.
    Appeal by the defendant, William Radam, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the' clerk of the county of Kings on the 16th day of March, 1893, upon the verdict of a jury for $6,000, after a trial at the Kings County Circuit, and also from an order made at the Kings County Circuit on the 9th day of March, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Stephen Yarn, Wyclc and Edward O. Jamies, for the appellant.

      B. F. Einstein, for the respondent.
   Dykman, J.:

This is an appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury and from an order denying a motion for a new trial upon the minutes of the court. The action is for libel, and the verdict was for $6,000.

The plaintiff is a physician and medical writer residing in the city of Brooklyn. The defendant is the discoverer of a certain remedy called Radam’s Microbe Killer, and resides in the city of New York.

In the month of September, 1889, the plaintiff published an article in which he reflected with severity upon the defendant and his remedy. That article was republished in the St. Paul Herald, and was followed by another article by the plaintiff in the same paper. Both of these articles contained fierce and acrimonious language and were plainly libelous.

The defendant wrote an answer to the article which was published in the St. Paul Herald, and that article constitutes the basis of this action. The answer admits the authorship and publication of the article and claims that it was without malice and for the protection of defendant and his remedy.

Upon the trial the plaintiff produced a circular issued by the Radam Microbe Killer Company subsequently to the article upon which this action is founded and since the commencement of this action, and a portion of the same was offered and read in evidence. The counsel for the defendant objected to the evidence as immaterial and having nothing to do with this case. The objection was overruled and there was an exception. This evidence was entirely inadmissible.

Neither the repetition of the libel nor the publication of other libelous matter after the commencement of the action is admissible for any purpose. (Frazier v. McCloskey, 60 N. Y. 337; Cassidy v. The Brooklyn Daily Eagle, 138 id. 239.)

While that is substantially admitted it is stated by the respondent that the objection to the testimony failed to state the proper ground for its rejection, and the exception is, therefore, unavailing.

General objections to testimony without the assignment of any ground or reason therefor will be insufficient and unavailable except where the objection, if properly made, could not have been obviated.

Pausing here for a moment, it is to be said that this case falls within the exception stated. The pamphlet from which the plaintiff read, acccording to the testimony of the plaintiff, was published or circulated by the Radam Microbe Killer Company through a lady in its office after this action was begun. The objection, therefore, could not have been obviated.

But the objection was not general; it specified the ground as immaterial and having nothing to do with this case.

It already appeared that the circular was not published by the defendant, and that its publication was subsequent to the commencement of this action, and that was sufficient to show that it had nothing to do with this case. It might be material in another suit based upon it, which could be commenced, and, therefore, it was inadmissible to enhance the damages in this case.

The case of Daly v. Byrne (77 N. Y. 182) is not an authority for the respondent. In that case the objection was considered by the court as general, but it was more like a proposition than an objection.

It cannot be said that the testimony did not injure- the defendant, for without it the size of the verdict is entirely inexplicable.

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

Phatt and CulleN, JJ., concurred.

Judgment and order denying motion for new trial reversed and new trial ordered, costs to abide the event.


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    Ada G. Van Sickel, Respondent, v. Silas A. Ilsley and Stillman Ilsley, Appellants.

      Conflict of testimony — verdict of the jury conclusive.

    In an action brought to recover damages resulting from personal injuries alleged to have been caused by defective machinery used by the plaintiff while in the defendant’s employment, the plaintiff testified that the machine which she was operating was one which was put in motion by her placing her foot on a treadle; that when she was injured, the machine started when her foot was not on the treadle, which could not have happened unless the machine was out of order. The defendants introduced testimony to show that the machine was in perfect condition at the time of the accident. The jury rendered a verdict for the plaintiff of $3,800.

      Held, that the conflict of testimony was such that the case was properly submitted to the jury, and
    'That the verdict was not excessive.
    Appeal by the defendants, Silas A. Ilsley and Stillman Ilsley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Kings county on the 27th day of March, 1893, upon the verdict of a jury in favor the plaintiff rendered at the Kings County Circuit, and from an order denying defendants’ motion for a new trial entered in said clerk’s office on tbe 2'iFtb day of Marcli, 1893.
    The plaintiff’s fingers were crushed by a press at which she was working, and to recover damages resulting from the injury thus inflicted this action was brought against her employers.
    The jury rendered a verdict in plaintiff’s favor for $3,300.

      Charles G. Nadal and Thomas 8. Moore, for the appellants.

      George W. JDease and Gharries J. Patterson, for the respondent.
   Dykman, J.:

This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the court.

The action was for the recovery of damages resulting from personal injuries to the plaintiff.

The plaintiff was in the employment of the defendants, and her duty was to operate a machine or press for stamping and beading tin.

The ordinary method of stamping the tin was by the fall of the punch or press caused by placing the foot of the operator upon the treadle.

The plaintiff claims and so testified that she was injured by the fall of the press or punch when her foot was not upon the treadle, and so her theory and that of her counsel is that such a fall would not occur if the machine had been in order, and as it did so fall it follows that the machine was not in order.

On the part of the defendants, testimony was- introduced which tended to show that the machine was in perfect order and condition at the time of the accident and for some time thereafter. Such contradictory testimony rendered the case a proper one for the jury, and it was submitted by a charge to which there was no exception. We find no errors and cannot say that the verdict is excessive. The judgment and order denying a new trial should be affirmed, with costs.

CulleN and Pratt, JJ., concurred.

Judgment and order denying motion for new trial affirmed, with costs.


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    John R. Drake, Appellant, v. The New York Iron Mine, Respondent, Impleaded, etc.

      Power of the court to compel an attorney to disclose the residence and occupation of his client'.

    The Supreme Court has power to make an order requiring a plaintiff’s attorney" to furnish to the attorney for the defendant a sworn statement showing tne occupation and residence of the plaintiff, when it becomes necessary for the due. and orderly progress of the action in which it is made, hut such power will never he exercised for any remote purpose.
    Appeal by tbe plaintiff, John R. Drake, from so mucli of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 1st day of June, 1893, as requires the plaintiff’s attorney to furnish to the attorney for the defendant a sworn statement of the residence and occupation of the plaintiff.

      JRoger M. Sherman, for the appellant.

      Frank JE. Smith, for the respondent.
   Dykman, J.:

This is an appeal from an order requiring the plaintiff’s attorney to furnish the attorney for the defendant a sworn statement showing the occupation and residence of the plaintiff.

There is doubtless sufficient power lodged in the court to make such or any order when it becomes necessary for the due and orderly progress of the action in which it is made, yet it is entirely obvious-that such power will never be exercised' for any remote purpose.

Courts make only such orders and permit such proceedings in actions -as are relevant and essential to the legitimate conduct thereof. Ulterior designs of litigants cannot be fostered by the courts.

This defendant has been offered all hé can require for the purposes of this action, and the papers before us disclose an ulterior design in procuring this order.

The attorney for the plaintiff made a distinct offer in writing to the attorney for the defendant to furnish him with the address and occupation of the plaintiff if it was desired for any purpose connected with the pending suit, and as that offer was not accepted there can be but one inference drawn from such failure to accept the same.

"We do not think the power of the court has been wisely exerted, and the order should be reversed, with ten dollars costs and disbursements.

Pratt, J., concurred; Cullen, J., not sitting.

Order reversed, with ten dollars costs and disbursements.


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    The People of the State of New York ex rel. Thomas J. Lynch v. Henry I. Hayden, as Police Commissioner, etc., Respondent.

      Police commissioner’s decision dismissing a patrolman.

    A wide range of power and discretion is vested in a police commissioner in dismissing from office a patrolman on tlie charge of intoxication, and appellate tribunals will not interfere witli bis decision except in a plain case of erroneous determination.
    CeetiobaRi issued under an order of the Supreme Court, made at the Kings County Special Term on the 18th day of July, 1893, directed to Henry I. Hayden, police commissioner, etc., of the city of Brooklyn, to review the dismissal of the relator from the police force of the city of Brooklyn.

      Sidney Williams, for the relator.

      F. A. MoGloshey, for the respondent.
   Dykman, J.:

This case comes here upon a writ of certiorari to obtain a review' of the proceedings of the defendant as police commissioner of the city of Brooklyn in dismissing the relator from the office of patrolman in that city.

The specific charge against the relator was intoxication, and two witnesses testified to the fact that he himself admitted that he had taken three or four drinks during the day.

The decision of the commissioner is sustained by the decision of the Court of Appeals in the case of The People ex rel. Masterson v. French (110 N. Y. 496), which was a case much like this, and the law of that case was not modified hy the subsequent case of The People ex rel. Hogan v. French (119 N. Y. 493).

A wide range of power and discretion is vested in the commissioner in this class of cases, and his decisions depend so much upon the facts in each case that appellate tribunals will not interfere except in plain cases of erroneous determinations.

This is not such a case, and the proceedings should be affirmed, without costs.

CulleN and Pbatt, JJ., concurred.

Proceedings affirmed, without costs.


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    John H. Caufield, Executor of Bridget Caufield, Deceased, Respondent, v. William B. Davenport, Public Administrator, etc., Appellant.

      Gif t causa mortis — delivery of a mortgage — intention to give the bond, a question of fact..

    When there has been a compliance with all the requisites of a gift causa mortis a bond and mortgage, except that there was no delivery of the bond, though there was a delivery of the mortgage, a question of fact is presented as to-whether the donee intended to give the bond as well as the mortgage.
    Appeal by the defendant, 'William B. Davenport, individually and as public administrator of the county of Kings, from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of March, 1893, upon the decision of the court after a trial at the Kings County Special Term.

      George Bliss, for the appellant.

      Lorenzo Ullo, for the respondent.
   Dykman, J.:

The defendant is the public administrator of the county of Kings, and, as such, became possessed of certain bonds and mortgages which be claims as a portion of tbe personal property of John Caufield, deceased.

The plaintiff is the executor of Bridget Caufield, the widow of John Caufield, and he claims the bonds and mortgages as the property of his testatrix, by virtue of a gift causa mortis from John Caufield.

This action was brought for the recovery of such bonds and mortgages. A trial was had before a judge without a jury, and he found the evidence sufficient to sustain the gift of one of the bonds and mortgages known as the Calhoun mortgage, and insufficient to sustain a gift of the others.

Judgment has been entered upon such decision, from which the defendant has appealed, but the plaintiff has not appealed.

The sole question, therefore, involved upon this appeal has reference to the ownership of the Calhoun bond and mortgage.

We find the evidence sufficient to sustain the findings of the trial judge, and the rules of law which control the case have been so frequently stated and are so thoroughly settled that a restatement of them would be unprofitable if not stale.

This point is made, however, by the appellant, assuming the evidence sufficient to show a compliance with all other requisites to a donatio causa mortis, that there was no evidence of a delivery of the Calhoun bond, and without such evidence proof of the delivery of the mortgage is insufficient.

That argument is based upon the theory that the bond is the principal and the mortgage is the incident of the debt it was intended to secure.

The case of Merritt v. Bartholick (36 N. Y. 44) is referred to as an authority, and it does recognize the principle as a general proposition, but after saying that the principal shall not pass by the grant of the incident, the court says: “Unless we are authorized to say that such was the intent of the parties we cannot hold that it did.” That is, that the transfer of the mortgage did operate as a transfer of the bond also. “ This is a question of fact.”

Under that authority, therefore, whether the donee intended to give the bond as well as the mortgage to the plaintiff’s intestate is a question of fact, and it was so treated by the trial judge.

Upon that subject he found that John Caufield, in recognition of tbe equitable right of his wife, in view of impending death, delivered to her as a gift thereof, and of the money secured thereby, the bond described as having been made by Annie E. Calhoun to John Cau-field to secure the payment of the principal sum of $9,000, together with the mortgage therein also described, bearing the same date and executed by the same person for the same sum with the same conditions as the said bond.

As a conclusion of law, the trial judge found that the delivery of the Calhoun bond and mortgage as aforesaid by the said John Canfield to the said Bridget Canfield, and the acceptance thereof by her as aforesaid, constituted a valid gift thereof for the purposes-declared by the said John Caufield.

The finding of fact of the trial judge is amply sustained by the evidence, and his conclusion of law is justified.

. Our conclusion is that the judgment should be affirmed, with costs payable from the estate in the hands of the defendant.

Pbatt and Cullen, JJ., concurred.

Judgment affirmed, with costs.


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    Henry Henney, Respondent, v. The Brooklyn Elevated Railroad Company and Another, Appellants.

      Judgment enjoining the operation of an elevated railroad —when proper.

    A judgment in an action brought to recover damages to property resulting from the construction and operation of an elevated railroad, and to restrain its operation, contained a clause enjoining the operation of the road, which clause was by the provisions thereof to become inoperative upon the payment of a certain sum of money thereby awarded. Proceedings for the condemnation of the property in question had been instituted subsequently to the commencement of the action.

      Held, that the judgment was proper, but that it would be otherwise had the injunction been absolute and had the condemnation proceedings been instituted prior to the commencement of the action.
    Appeal by the defendants, The Brooklyn Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plain-tiff, entered in the office of the clerk of the county of Kings on the 27th. day of January, 1893, upon the decision of the court after a trial at the Kings County Special Term.
    The judgment in the action contained, substantially, the following provisions:
    That the defendants, their agents and all persons claiming under them, be and they hereby are perpetually enjoined from maintaining or using the elevated structure on Hudson avenue in the city of Brooklyn in front of the plaintiff’s premises.
    That if the defendants shall, within twenty days after the service of a copy of the judgment, with notice of entry thereof, deliver to the plaintiff a written offer to pay to him $325 and interest, then upon the plaintiff’s tender to the defendants of a duly executed conveyance to The Brooklyn Elevated Railroad Company of the easements in said premises which had been taken by the said elevated railway in Hudson avenue, Brooklyn, including the easements of light, air and access, and any right or easement whatsoever as abutting owner or otherwise, which may be subject to injury resulting from the structure of such railroad or incidental to , its use, and if they pay to the plaintiff the sum of $325 and interest, the judgment shall be inoperative and void so far as it affects the maintenance and operation of such structure and railway.
    That if said plaintiff omits or refuses to accept such offer or to deliver such conveyance duly executed within twenty days after such offer, the said judgment shall be inoperative and void so far as it affects the maintenance and operation of such railroad.
    The supplemental answer contained the following allegation:
    “Defendant alleges that since the commencement of this suit proceedings have been instituted, under the Condemnation Law, for the purpose of condemning the rights and easements, if any, in the property described in the complaint herein, which have been taken by the said elevated railroad structure.”

      Wm. H. Oohen, for the appellants.

      Stephen M. Hoye and Francis Russell Whitney, for the respondent.
   Dykman, J.:

This is an appeal from a judgment in favor of the plaintiff against the defendant.

Tbe action was for tbe recovery of damages to property resulting from the construction and operation of tbe defendant’s elevated railroad and to restrain its operation.

Tbe trial was before a judge without a jury and we find no error in the' record.

The portion of tbe judgment which provides for an injunction would be erroneous if it was absolute and tbe proceedings for tbe condemnation of tbe property bad been instituted previous to tbe commencement of tbe action.

.But such proceedings were instituted subsequently to tbe commencement of tbe action, and the restraining portion of the judgment will become inoperative upon the payment of the sum of money awarded.

Under such circumstances we see no reason for a reversal of the judgment.

The judgment should be affirmed, with costs.

CulleN and Peatt, JJ., concurred.-

Judgment affirmed, with costs.


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    In the Matter of the Application of Andrew D. Baird and Others, Appellants, for a Writ of Mandamus to G. Cochrane Broome and Others, Supervisors of the County of Kings, Respondents.

      Redistricting a county — when a mandamus to compel it is properly denied.

    The average number of inhabitants in each of the Assembly districts of the county of Kings is 54,877, and the variation from that standard in any one district is but about 6,000, and the variation in most of the districts is much less.

      Held, that an order denying a motion for a writ of mandamus to compel the supervisors to redistrict such county wap proper.
    Appeal by the relators, Andrew D. Baird and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2§th day of August, 1893, denying the relators’ motion for a writ of mandamus.

      Tliis was an application made to compel the redistricting of the county of Kings on the ground that the districts of the county, as determined by the defendants, did not consist of convenient and contiguous territory, and that the population of such districts was not made as nearly equal as was attainable by the method of division-employed.

      Jesse Johnson, F. F. Bama/rd, B. F. Blcdr and Fckoin H. FEobbs, for the petitioners, appellants.

      John B. Meye/iborg, for the respondents.
   Dykman, J.:

The opinion of the Court of Appeals in this case when it was decided there, contains this language:

“"We do not intend by this decision to hold that every trifling deviation from equality of population would justify or warrant an application to a court for redress. Such, we think, is not the meaning of the provision. It must be a grave, palpable and unreasonable deviation from the standard, so that when the facts are presented argument would not be necessary to convince a fair man that very great and wholly unnecessary inequality has been intentionally provided for. This is as hear an exact definition of the meaning of this section in this regard as I am able to now give.”

In view of the rule so enunciated and of the duty devolved upon the board of supervisors to divide the county of Kings into eighteen Assembly districts, each of convenient and contiguous territory, and as equal in point of population as possible, without a division of the four towns in the county, our conclusion is that there is not only no unreasonable deviation from the standard, but that the standard has been observed.

The average number of inhabitants in each district is 54,8'T'r, and the variation from that standard is only about 6,000 in any case, and in most cases it is much less.

Our conclusion is that the order should be affirmed.

Peatt, J., concurred; CulleN, J., not sitting.

Order affirmed.


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    James H. Styler, Respondent, v. The Long Island Railroad Company, Appellant.

      Conflict of testimony — the verdict of a jury not distitf'bed.

    "Where testimony upon the trial of an action to recover damages resulting from personal injuries to the plaintiff is contradictory, and that offered by the plaintiff makes a cause of action for him, and that on the part of the defendant is sufficient to relieve the defendant from'liability, the case is properly submitted to the jury, and it is to be assumed that the jury believed the testimony of the witness called by the party in whose favor a verdict is rendered, and the court will not disturb such a verdict.
    Appeal by tlie defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 24th day of March, 1893, and from an order entered in said cleric’s office on the same day, denying defendant’s motion for a new trial.

      W. G. Beecher, for the appellant.

      Thomas E. Pearsall, for the respondent.
   Dykman, J.:

- This is an appeal by the defendant from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the court.

The action is for the recovery of damages resulting from a personal injury to the plaintiff by reason of the negligence of the defendant.

The testimony upon the trial was contradictory, that on the part of the plaintiff making a cause of action for him, and that on the part of the defendant sufficient to exculpate the company.

It was, therefore, a proper case for the jury, and the trial judge .submitted the same in a charge which was eminently fair towards the defendant, and the jury rendered a verdict in favor of the plaintiff.

"We must assume, therefore, that the testimony on the part of the plaintiff commanded the belief of the jury and in that view the verdict cannot be disturbed.

We find, no error, and tlie judgment and order denying the motion for a new trial should be affirmed, with costs.

Pratt and Cullen, JJ., concurred.

Judgment and order denying motion for new trial affirmed, with costs.