author: O’Brien, J.i

text:
    The People of the State of New York, Respondent, v. Burton C. Webster, Appellant.

      Indictment for murder — conviction of manslcmghter —scope of cross-examination of the defendant — objection to a photograph as evidence — intent — technical ei'rors not regarded on appeal — Code of Criminal Procedure, § 543.
    Where, on a trial for murder, the defendant seeks to justify the homicide on the ground that it was committed in self-defense, in connection with his calling the deceased to account for insults offered to the defendant’s wife, and it is admitted that no marriage ceremony had been performed between the defendant- and the woman claimed to be his wife prior to the homicide, and it is an open question whether the relation between them was meretricious or rested upon a. common-law marriage, it is competent for the prosecution to cross-examine the defendant as to his original relations with the woman.
    A photograph is competent evidence, when supported by proper proof as to its-accuracy and correctness, and a general objection to its admission as “incompetent, iitmateriftl and irrelevant,” not stating any specific ground, is not a good objection, and an exception based thereon is not available on appeal.
    The intent with which a homicide is committed may be inferred by the jury from the character of the act.
    Where, on the trial of an indictment for murder in the first degree, the evidence for the prosecution would have justified a verdict of guilty of the crime charged, but the iwrf by rendering a verdict of guilty of manslaughter in the first degree, make it -apparent that they accepted the facts as presented by the defendant and his witnesses, according to them full faith and credence and adopting the most favorable view possible upon such facts, technical errors in the admission or exclusion of testimony, or in the comments or criticisms made by the judge during the trial, cannot be deemed to have affected the substantial rights of the defendant, and hence, by force of section 542 of the Code of Criminal Procedure, are not to be regarded on appeal.
    Appeal by tbe defendant, Burton O. Webster, from a judgment of conviction, rendered in the Court of Oyer and Terminer in and for the city and county of New York, on the 3d day of October, 1892, upon a verdict finding the defendant guilty of manslaughter in the first degree.

      William F. Howe, for the appellant.

      Henry B. B. Stapler, for the respondent.
   O’Brien, J.i

The indictment charged .the defendant with murder in the first degree, in having, on the 2d day of August, 1891, shot and killed one Charles E. Goodwin. The killing was admitted, but, as a defense, the act was claimed to have been justifiable homicide. The issue thus joined, upon evidence presented by the people and the prisoner, was resolved by the verdict of the jury in finding the defendant guilty of the crime of manslaughter in the first degree, and it is from the judgment entered upon such verdict that this appeal is taken.

The deceased was a bachelor, thirty-five years of age, engaged in the wholesale dry-goods business at White street in the city of New York. On the 1st of January, 1891, he took possession under a lease of an apartment consisting of a library or sitting room, bedroom and bathroom, on the third floor of the dwelling known as the Percival apartment house, on West Eorty-second street. About May first, the prisoner came to the Percival, bringing with him a woman known as Evelyn Granville, who occupied with him an apartment on the same floor with that of the deceased, the distance from the door of one to the door of the other being about fifty-nine feet.

On the afternoon of August second, which was Sunday, the deceased left his apartment, and in company with his brother and his brother’s wife, went to the Grand Central Depot, where the latter took the six o’clock train for the west.

On the part of the people, it is claimed that the testimony showed that the deceased, upon returning to his apartment, took off his coat and hung it on the back of a chair, and then sat down at his writing-desk and commenced the writing of a letter, in the midst of which he was interrupted by a knock at the door, in answer to which he arose and went to the door and opened it, and was confronted by the defendant, who shot him; that he staggered back and stumbled or fell upon and broke a cuspidor, which had been previously broken and mended, which stood immediately behind him when he opened the door, which opened in such a way as to make this position the necessary position to take in opening it. That he fell backwards, and was found by the husband of the housekeeper, who hastened to the apartment immediately upon hearing the noise of his fall, lying outstretched on his back, his feet within three or four feet of the point where he must have stood when he opened the door, and his body occupying the position which it would have occupied had the deceased been shot when opening the door, and had staggered backward, falling over the cuspidor, which was found broken at the feet of deceased, but in its usual place.

This theory, it is claimed, is supported by the facts, that a letter was found lying upon the writing-desk, fully written for three pages and broken off in the middle of an unfinished word; that the pen was found lying on the desk, and the ink bottle open; the pipe half filled with tobacco, and with the ashes still in the pipe lying on the desk; that the direction of the bullet indicated that it was shot from a pistol held directly iri front of the abdomen of the deceased, which would have been the necessary position of the defendant had the deceased been shot when he opened the door.

In his dying declaration, the deceased stated to the detective: “ I was sitting right at my desk, when a man, I never saw before, by the name of "Webster, came and shot me.” And to Dr. Wimmer he said : “ I was sitting at my desk writing a letter; there was a knock at the door; I got up to answer it, and was confronted by Webster, who shot me. He must have had a grudge against me.” To a question by the same witness, as to how the cuspidor was broken, the deceased said it was broken by his stepping on it when falling — stumbling over it.

It further appeared that the prisoner, in escaping from the Percival was met by the janitress and her husband just after the latter’s attention liad been attracted by the noise of the heavy fall of the deceased; that he was dressed for the street, and that they did not observe anything about his appearance that would indicate that he was excited; that he looked just as he always looked, and that he remarked to the janitress before leaving, “ That man Goodwin is hurt; get a doctor.” Thus, without further explanation of his act in shooting the deceased, or attempted justificar tion of the same, he escaped and remained in hiding five days.

The only living witnesses who claimed to have been present at the shooting were the defendant, Evelyn Granville and one Fanny Bomaine, a servant on the premises. The defendant testified that the woman known as Evelyn Granville was his wife; that he went to live with her about January 1, 1891, when she had an apartment on the corner of Sixth avenue and Thirty-fifth street, where she was supporting herself by pawning her jewelry, and that he continued to live with her without marriage ceremony having been performed down to the time of the killing of the deceased. That before the first trial of the defendant a marriage ceremony was performed between them at the Tombs. That defendant had been previously married in Illinois to one Ohai’lotte Picard, and ceased to live with her seven months after their marriage.

In his defense, the defendant testified in substance that for some months prior to the shooting, while this woman whom he claimed to have been living with as his wife, by virtue of a civil contract ■entered into between them without witnesses, was in a delicate condition of health, the deceased frequently made indecent assaults upon her while the defendant was absent and when «lie was .alone and unprotected. That on the day of the shooting, 'lie found his wife lying on the lounge and with her the servant; that his wife complained that she was afraid to cross the hall to her bathroom ; that quite often when she went out to go to her bathroom, the deceased would appear at the end of the hall in a semi-nude condition, exhibiting his person to her, and. that he was then in the habit of making indecent remarks. He further testified that she told him that one Macfarland had told her that he had seen the deceased at the far end of the hall; that he came there naked at one time, and at another time was there with just his shirt and his pajamas on, and had inquired from Macfarland if the defendant was in his own room. What then happened is thus recounted by the defendant:

“We were sitting there laughing and talking, I think about an hour, perhaps more than an hour; a knock came at the door. I can best describe it as calling it a nervous knock; the chambermaid started to get up; she was fanning my wife, and I told her I would go to the door. I went to the door and opened it and Goodwin stood before me. He made some remark, It is you, is it ? ’ or Damn it, it is you,’ and struck at me, and I think he grazed my nose; I stepped back slightly ; he went from the hall in the direction of his room and I followed him, and when I got to his door I might have been slightly in his room, slightly outside; I might have been upon the threshold ; I cannot state. When I got there he was confronting me. I told him, I said, £ Goodwin, this thing has got to stop.’ He had been hounding me and my wife for a long time. She had never encouraged him in any way. She had done nothing at all to warrant him in persecuting her. I complained to the landlord of him. I could not leave there because I had 'a lease. He stood there in front of me; he raised his cuspidor over his head. I heard a voice behind me, my wife’s voice, £ Look out, Burt! Look out, Burt; he will kill you.’ At the time he had this held so (illustrating), and impulsively, knowing that I was armed, drew my pistol and shot him. * * * ”

By the Court :

Q. State what you did after you fired the shot ? A. ] hardly realized what had happened at the moment. When I next looked at Goodwin he was on the floor. I told him I was sorry it happened, but he brought the whole thing on himself ; that I hu d done nothing to him; I had never sought him; he had been the aggressor from the beginning to the end. I told him I would go at once and get him a doeí»r? and send him assistance. I went from there to my room, put on my coat, and went downstairs; there were three parties in the hall at the tine, I think; I spoke to one of them and told him to go at once for a doctor for Goodwin; that he was hurt.”

In this testimony defendant was corroborated by the evidence of the two women Evelyn Granville and Eannjr Romaine, who claim to have been eye-witnesses of the shooting.

Appellant insists that, notwithstanding the conflict in the.tes- . timony, that taking it in its entirety, it shows that the jury must have disregarded the evidence in arriving at their verdict, and must have entirely ignored the testimony showing that the defendant acted in self-defense.

We cannot assent to this view, because, if'the jury had credited the evidence presented by the people -and the inferences which could have been justly drawn therefrom, they might well have found the defendant guilty of the crime of murder in the first degree. How far the people’s evidence was destroyed or impaii’ed by that presented by the defendant we shall have occasion to speak of when we have disposed of the exceptions which appellant insists present legal errors committed on the trial which would require a reversal of the judgment, irrespective of the question of the verdict being against the weight of evidence.

The exceptions taken in the cross-examination of the defendant as a witness in his own behalf, with respect to his relations and conduct with Evelyn Granville prior to her marriage, were certainly within the discretion of the trial judge, in view of the claim made that in resenting the insults offered to his wife he was justified in-calling the deceased to ■ account, and that the encounter with the deceased which resulted, and which placed defendant in apprehended danger of great bodily harm from the cuspidor in the hands of the deceased, justified the shooting as an act of self-defense.

Throughout the trial the prisoner placed great stress on establishing that the relation between him and Evelyn Granville was that of husband and wife ; and it was, therefore, competent on the part of the people to show what in the beginning was the relation between these parties, in view of the admitted fact that no marriage ceremony had ever been performed between them prior to the shooting; and as the question was an open one whether or not it was a common-law marriage or a meretricious relation, the cross-examination of the defendant as. to whether such relation was marital or meretricious was entirely proper.

Another exception relied upon relates to the introduction of a photograph. The record shows that the defendant was handed the photograph and was asked: “ Q. Is that a just picture of the naan you met there % A. That somewhat resembles him.” The photograph was then offered in evidence and was objected to as incompetent, immaterial and irrelevant.”

It cannot be seriously claimed that photographs are not admissible, because the rule permitting such evidence is founded upon the same principle that applies to diagrams or maps, which, upon proper proof as to their accuracy and correctness, are competent. The objection made, therefore, that it was incompetent, immaterial and irrelevant, was not a good objection. As said in Murphy v. People (63 N. Y. 595): The objection was general, and no ground of objection was specified. If objection had been taken to the mode of proving the facts, other proof might have been given, and the objection have be'en obviated. In the absence of an objection of this kind, it must be assumed that the question intended to be raised by the objection made was as to the competency of proof of the fact to which the question related, and not to the mode of proving it. * * * The authorities on the general proposition that the objection now taken should have been specifically made on the trial, in order to be available on error, are decisive.”

Other errors assigned are directed to propositions of law in the charge of the learned trial judge. Considered as a whole, we think the charge was a fair and impartial presentation of the facts bearing upon the claims of the prosecution, the defense presented by the prisoner, and the law relating to the different degrees of murder and manslaughter. The exceptions were few and will be briefly referred to.

The first was taken to the rule of law laid down by the judge as to the weight to be given to evidence of good character. Any error into which the court in its charge may have fallen in this respect was entirely cured, when its attention was called to it, by charging the very request asked for by the defendant’s counsel.

The court, in response to an inquiry from the jury upon the question of intent, said:

“ You must find a design to kill. It is only proper I should state to you that that design to kill may be found from all of the surrounding circumstances. A man is presumed to intend or design what his act is liable to perform. If a person fires a pistol into the body of another, from that fact alone the jury may find the intent. You must find the intent, the design to kill, but it is not necessary that a person killing another should announce beforehand he does intend to kill. In order for you to find that intent you must be satisfied from ■ all the surrounding circumstances. The act itself, the way it was committed, the weapon that is used, furnish the design or intent to kill, to find murder in the second degree.”

Mr. Howe.— “ Will your honor permit me to except to that portion of your charge, and I ask you now to charge the jury in response to their question, that if they have any reasonable doubt of intent to kill, they should not convict of murder in any degree.”

The Court.— “ I so charge, and repeat, as I have already said to you, you can find that intent from the nature of the weapon and the manner of its use.”

The exception to this we do not regard as well taken ; for all the text-writers, supported by the decisions of our Court of Appeals, hold to the view that the intent could be inferred from the character of the act. Thus Bishop:

“ It is a rule of criminal evidence that a man is presumed to intend the natural, necessary and even probable consequences of what he intentionally does.” (1 Bishop on Criminal Law [7th ed.], § 734. See, also, Starkie on Evidence [10th ed.], 848; 1 Phillips on Evidence, 632; People v. Conroy, 97 N. Y. 77; Foster v. People, 50 id. 609.)

It will thus be seen that the exceptions taken to the charge of the court were untenable, and the two propositions requested by the defendant were charged.

Certain exceptions taken upon the cross-examination of a witness for defendant, Fanny Romaine', as to her intimacy with Mrs. Webster and her opium habits, we do not regard as good, because it was competent upon the question of bias of the witness to show her exact relation with the defendant’s wife, and the fact as to whether or not she was under the influence of opium would effect to some degree the weight to be attached to her statement of what occurred at the time of the shooting. It was a matter within the discretion of the judge, and we do not think that in this instance it was abused.

The most serious exceptions presented by this record are those having reference to criticisms made during the progress of the trial when the learned justice was passing upon the admissibility of the evidence, and the introduction over defendant’s objection of evidence to prove what the servant Fanny Romaine had told a witness with respect to going to Roster & Bial’s, and to contradict Fanny Romaine’s testimony as to the extent of her habits in taking opium.

We think it clear that these matters upon which the witness Romaine was cross-examined were collateral matters, and that, under the rule, by her answers given upon cross-examination the people were bound, as said in Stokes v. People (53 N. Y. 176): “ Upon cross-examination the prosecution had the right, for the purpose of impairing the credit of the witnesses, to ask questions as to those collataral matters, but having asked and obtained answers, must abide by the answers given; other witnesses could not be called to prove such answers untrue.”

In People v. Ware (29 Hun, 473; affirmed, 92 N. Y. 653) it said: “The rule upon this subject has frequently been made a matter of consideration by the courts, and it is now well established that to entitle the party interrogating the witness in this manner, by way of cross-examination, to introduce evidence to contradict his statements, the cross-examination must be directed to a material inquiry in the case or to evidence establishing a hostile or unfriendly bias against the party in the mind of the witness.” (See, also, Kirkpatrick v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 243; Chapman v. Brooks, 31 id. 87; Carpenter v. Ward, 30 id. 243.)

We think this rule was violated by admitting this evidence to contradict Fanny Romaine on collateral matters, involving as it did the questions whether she had or had not, weeks prior to the shooting, slept in Mrs. Webster’s apartment, and whether she had not while she lived at the Percival been in the habit of taking opium, and had not told Mrs. Wade that if she was deprived of opium it would kill her. The question, however, to be determined is, whether this was a prejudicial error. The Criminal Code requires (§ 542) that, “ after hearing the appeal, the court must give judgment, without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

- The witness Romaine had testified to the taking of opium; she had admitted her intimacy with Mrs. Webster; and under these circumstances, we do not think any serious prejudice resulted to defendant in the eyes of the jury, who were aware, before such testimony, of the fact that the witness Romaine was in the habit of taking opium during all the time that she had been in the Percival flats, and had been intimate with Mrs. Webster. The additional circumstance about Koster & Bial’s is not serious enough to justify a reversal of the judgment.

With respect to the comments or criticisms of the learned justice, which it is claimed were made during the entire trial, including the charge, while there was some slight justification growing out of the necessity of explaining the reasons for his rulings, we think they were carried to too great an extent; and what was said in the case of Sindram v. People (88 N. Y. 202), in speaking of comments made upon testimony in the charge of the judge, is pertinent here: “ It is desirable that the court should refrain, as far as possible, from saying anything to the jury which may influence them either way in passing upon controverted questions of fact, and perhaps comments on the evidence might be carried so far as to afford ground for assigning error.”

The reason assigned by the judge himself, that these comments and criticisms were required to explain his rulings, coupled as it was during the various stages of the ease by the emphatic statement of the court that the jury were the judges of the controverted facts, and that the opinion of the court was in no way to affect them, we think destroyed any impression which otherwise such comments might have created in the minds of the jury adversely to the prisoner ; and our conclusion is that, having in view the rule laid down for our guidance by the Code of Civil Procedure, we should not resort to what may be a technical error for the purpose of reversing a judgment which upon the whole case does not seem to do any injustice to the defendant.

Upon the entire record, we think it apparent, whatever technical error in the admission or exclusion of testimony may appear, or in the comments or criticisms made by the judge during the trial, that it cannot be contended that such could have been in jurious to the rights of the defendant, in view of the fact that the jury by their verdict accepted the facts as presented by the defendant and his witnesses, according to them full faith and credence, and adopting the most favorable view possible upon such facts.

If we give little or no weight to the People’s case — which, as we have already said, would have justified a verdict of murder in the first degree — and consider the testimony offered by the defendant, it is fairly susceptible of but one conclusion, and that consistent with the verdict, holding the defendant guilty of at least manslaughter in the first degree.

The Penal Code (§ 179) defines homicide as “ the killing of one human being by the act, procurement or omission of another.” “ Such homicide is manslaughter in the first degree, when committed without a design to effect death, either (1) * * * (2) in the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon ” (§ 189).

At the time of the killing, the defendant was within his own apartment, within the precincts of his own home, where he had a right to be, in an attitude of defense, which he had a right there to assume against the onset of defendant, a trespasser therein. And this circumstance alone is most potent in determining the question as to which one was the aggressor, and as to whether or not the shooting was without justification or excuse. As said by the learned trial judge in his charge: “Presuming that you believe Webster’s story, Goodwin after he struck the blow, wanted to get away ; he did not stay there to continue the fight, dispute or whatever there was, if there was any, but he left and retreated to his own room. It is perfectly evident that Webster was perfectly safe if he stayed where he was, if he had wished not to take the law into his own hands. If any crime had been committed he could have gone to the police magistrate and called in the police. He, however, did not stay where he was, but followed Goodwin. He followed Goodwin to his own room. Goodwin went into his own room, and defendant followed him to the doorway. So far as it appears, Goodwin was unarmed, and being in his own room, he was justified in using force to prevent any assailant from coming to his room and assaulting him there. Webster was armed with a pistol.

“ Gentlemen, I leave it to you to say who was the assailant and who was acting in self-defense. Goodwin, with nothing but a cuspidor in his hand, Webster following him into his room with a pistol in his pocket. I leave it to you to say from that story, as told by Webster himself, whether Webster was justified in taking out his pistol from his pocket and killing Goodwin without attempting to get around the door, the side of the door, without retreating, without saying, ‘Stop, or I will fire;5 without giving him warning — was what he did necessary to protect his life or person from serious injury ? If you believe that it was, if you believe it was self-defense, that he was justified under this statute, as I have stated, then it is your duty to say by your verdict that Webster did no wrong when he shot and killed Goodwin, and he should go forth a free man.”

That this view as to the obligation resting upon the defendant to avoid the necessity of taking human life was thus correctly presented to the jury, is shown when we consider the cases referring to this subject. Shorter v. People (2 N. Y. 193), which has been frequently referred to and cited with approval, holds (head-note): “ One who is without fault himself, when attacked by another, may kill his assailant, if the circumstances be such as to furnish reasonable ground for apprehending a design to take away his life or to do him some great bodily harm, and there is also reasonable ground for believing the danger imminent that such design will be accomplished, although it may afterwards turn out that the appearances were false and there was in fact no such design nor any danger that it would be accomplished. But this principle will not justify one in returning blows with a dangerous weapon when he is struck with the naked hand and there is no reason to apprehend a design to do ,him great bodily harm. Nor will it justify homicide when the combat can be avoided, or where, after it is commenced, the party can withdraw from it in safety before he kills his adversary.”

And in People v. Sullivan (7 N. Y. 396), is is said (head-note) : “ "Where one believes himself about to be attacked by another and to receive great bodily injury, it is his duty to avoid the attack if in his power to do so, and the right of attack for the purpose of defense does not arise until he has done everything in his power to avoid its necessity.”

Section 205 of the Penal Code defines justifiable homicide, so far as applicable to the case at bar, as follows: “ Homicide is also justifiable when committed, either 1. In the lawful defense of the slayer * * * when there is reasonable ground to apprehend a design on the part of the person slain * * * to do some great per sonal injury to tlie slayer * * * and there is imminent danger of such design being accomplished. * * * ”

In finding the defendant guilty of manslaughter in the first degree, the jury toolc the view of the evidence most favorable to defendant. They accepted his story and that of his two witnesses, as to his anger being aroused by the complaints of Evelyn Granville, by the immediate presence thereafter of the deceased at his door in pursuit of her, by the blow in the face then alleged to have been received, and that on following the deceased for the purpose of remonstrating, he was greeted, as alleged, by a curse from the deceased, who stood with a cuspidor in his hands — which, though insufficient to justify defendant in entertaining apprehension of great bodily harm, might be regarded as the first step in an affray invited by a man who had insulted a woman under his protection — and that, thus heated with passion, he drew his revolver and, with no intent to kill, fired at the deceased.

The testimony shows that the deceased was the pursued, and not the pursuer ; that he had retreated into a place where he had a right to defend himself against the further pursuit of the defendant; that when the defendant stepped upon the threshold of the abode of the deceased, the latter was standing six feet away with a raised cuspidor, which the jury had a right to assume was an attitude of defense against an expected attack from his pursuer. Even though the deceased had intended to throw the cuspidor, this could have been avoided by stepping one side or leaving the room. But instead of this, and -without making any effort to avoid the attack, though in his power to do so, the defendant took from his pocket a pistol, which, without warning or intimation, he fired into the abdomen of the deceased, in whose hands the cuspidor remained still unthrown. We agree with the counsel for the people, that the evidence presented by the defendant was not sufficient to show that the shooting was done in self-defense, or in reasonable apprehension of bodily harm which could not be avoided ; and that it was only by taking the most favorable inference from the testimony of defendant’s own witnesses, that the. jury reached the conclusion that the defendant was not guilty of murder in the first degree, but was guilty only of manslaughter. Had the defendant been convicted of murder in either degree, there would be greater force in the argument made that tbe errors pointed out were prejudicial to defendant.

It is this conclusion that the verdict was just, and the conviction that is forced upon us from a reading of the evidence, that the defendant should not entirely escape the consequences of what it is apparent was a wanton and deliberate killing of a fellow man, that induces us to disregard, as we are required to do, the technical errors which may appear in the record, it being apparent, upon the testimony here produced, and from the character of the verdict, that such errors did not affect the substantial rights of the defendant.

We are, therefore, of opinion, in accordance with the section of the Criminal Code to which we have already referred, which requires that we should give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties, that the judgment should be affirmed.

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

Judgment affirmed.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    The People of the State of New York ex rel. George L. Davenport, Appellant, v. Frank Rice, as Secretary of State, Respondent.

      Mandamus against the Secreta/ry of State —judicial district in which the application should he made — his powe/’s — purposes comprehended in chapter 267 of 1875.

      Query, whether an application for a mandamus to compel the Secretary of State of New York to file a certificate of incorporation must be made within the third judicial district, which includes the city of Albany, where the office of that official is located, when the material facts involved occurred in some other district.
    The Secretary of State is not a mere ministerial officer, in reference to filing a certificate of incorporation under chapter 267 of the Laws of 1875, entitled “An act for the incorporation of societies or clubs for certain lawful purposes,” and he is not bound by the approval of a justice of the Supreme Court of such a certificate, nor is such approval conclusive upon him.
    The Secretary of State has a right, upon presentation for filing íd his office of a certificate of incorporation under said act, to pass upon the question as to the form of the certificate and as to whether or not it is entitled to be filed under the statute, subject to review in a proper proceeding.

      Semble, that chapter 267 of the Laws of 1875 was not intended to embrace an incorporation “to establish and create a helpful opportunity for thrift among cash purchasers upon their individual and family expenditures, by providing for commissions from tradesmen on cash sales, which are to benefit, through the company, the purchasers.”
    Appeal by tbe relator, George L. Davenport, from an order of tbe Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 9th day of January, 1893, denying the relator’s application for a peremptory mandamus to compel the Secretary of State to file a certificate of incorporation.

      Joseph Fitch, for the appellant.

      S. W. Rosendale, Attorney-General, for the respondent.
   O’Brien, J.:

The certificate of incorporation of the Universal Thrift Company, of New York is drawn under chapter 267 of the Laws of 1875, entitled “ An act for the incorporation of societies or clubs for certain lawful purposes.” It was drawn and executed in this city, and the approval and consent to its filing by a justice of this court was annexed. The particular business and object of this corporation, as stated in its certificate, is to establish and create a helpful opportunity for thrift among cash purchasers upon their individual and family expenditures, by providing for commissions from tradesmen on cash sales, which are to benefit, through the company, the purchasers.” The certificate, approved by the justice - of this court was forwarded to the Secretary of State, who refused to file it upon the ground, as stated in the letter of his deputy, that these objects are of a business nature and are, therefore, not authorized under the act mentioned.” (Chap. 267, Laws 1875.) “ Said act is for the incorporation of societies or clubs, and not for the carrying on of the business contemplated by the proposed corporation.”

This application for a peremptory mandamus to compel the Secretary of State to file such certificate was the result of the Secretary’s refusal; and upon the application the motion was denied, without passing upon the other questions, upon the ground that it should have been made in the third district, which includes the city of Albany. The judge at Special Term relied upon the case of Mason v. Willers (7 Hun, 23), which held that a motion for a mandamus to compel the Secretary of State to file a certificate of incorporation can only be made in the third judicial district or a county adjoining thereto. In the opinion by Taloott, J., attention is called to “ the great inconvenience and detriment to the prablic business which must result if motions of this character can be made in any one of the numerous Special Terms of the State, and public officers be compelled to justify their official acts, at all times, away from the neighborhood of their offices and their books and papers.”

This consideration of the convenience of public officers and detriment to public business is potent in all cases where a legal ground, can be found for requiring parties, as they should be required, to-apply in the third district. But this is, however, quite different from holding that a judge in any other district has no jurisdiction to entertain applications for mandamuses against public officials-whose offices are at Albany. In the case referred to, the court was-construing the third Revised Statutes, chapter 9, title 2, section 16 (5th ed. p. 898), and sections 401 and 471 of the Code of Procedure all of which statutes have been repealed, section 401 of the old Code being re-enacted in the Code of Civil Procedure as section 769, and mandamus applications being specially provided for by the present Code in sections 2068 and 2084. By section 2068 of the Code of Civil Procedure it is provided that “the Special Term (granting a mandamus) must be one held within the judicial district embracing the county wherein an issue of fact joined upon an alternative writ of mandamus is triable.” And by section 2084, “ an issue of fact joined upon an alternative writ of mandamus granted at a Special Term of the Supreme Court, is triable in the county wherein it is alleged in the writ that the material facts took place.”

It would seem, therefore, that applying this test, the district in which the application should be made is dependent, not upon the location of the office of an official, but rather upon where material facts, which it might bq necessary to determine upon an alternative writ, had occurred. In other words, the proper district in which to make the application is to be resolved by determining in what county or place an issue of fact joined upon an alternative writ of mandamus, if granted, would be triable. And as this is dependent upon where the material facts occurred, and as it is here made to appear that some of the material facts occurred in New York, and some in Albany, it is not entirely clear that we would be justified in sustaining the view taken by the judge below, that the Special Term in this district had no jurisdiction to entertain the present application.

"We think, however, without passing upon that question, that the disposition made must, upon other grounds, be sustained. The claim that the Secretary of State is a mere ministerial officer, and was bound by the approval of a justice of the Supreme Court, is not borne out by statute or authority.

In People ex rel. Blossom v. Nelson (46 N. Y. 477), it was held that “ the Secretary of State is not required to file a certificate for the organization of a corporation not authorized by the act; ” and further, that “ a compliance with the act, as well in substance, by associating for one or more of the authorized objects, as in form, by signing and acknowledging a proper certificate stating the facts required, is a condition precedent to the right of the associates to avail themselves of the act and place the certificate on file.”

The same case is also authority against appellant’s contention that the approval of a justice of the Supreme Court is conclusive upon the Secretary of State, for it is therein held, that “ the consent and approbation of a justice of the Supreme Court required by the act is but one of the conditions precedent to the right to file the certificate, and is cumulative to the other requisites of the act, but decides nothing and is not conclusive either upon the public or the Secretary of State.”

If necessary to go further in order to dispose of the question, we should hold, upon the merits, that the conclusion reached by the Secretary of State was right, for the reason that we do not think that chapter 267 of the Laws of 1875 was intended to embrace an incorporation such as was here proposed to be formed. IJpon the authority, however, of People ex rel. Blossom v. Nelson (supra), it is sufficient for the disposition of this appeal to say, that the Secretary of State had a right to pass upon the question as to the form of the certificate, and as to whether or not the relator was entitled to have the same filed under the statute under which the company was sought to be organized, subject of course to review in a proper proceeding, and that the application to the Special Term to compel the Secretary of State to resolve this in relator’s favor was’properly denied.

The order should, therefore, be affirmed, with costs and disbursements.

Van Brunt, P. J. I concur upon the ground last stated.

Follett, J., concurred.

Order affirmed, with costs and disbursements.


text:
    The McElwee Manufacturing Company, Respondent, v. Benjamin A. Trowbridge, Appellant.

      Pleading — counterclaim—proof of the existence of a foreign corporation — admission of a disputed fact, made in the course of negotiations for a settlement.

    An allegation, of damages in an answer cannot be deemed a counterclaim, when no affirmative relief is demanded thereon and it is pleaded as a defense and treated as an offset.
    Section 1776 of the Code of Civil Procedure applies to foreign as well as to domestic corporations, and, hence, in an action by or against a foreign corporation the existence of the corporation need not be proved, unless there is an affirmative allegation in the answer that the plaintiff, or the defendant, as the case may be, is not a corporation.
    An allegation in an answer, that the defendant “has no knowledge or information sufficient to form a belief” as to the organization of the plaintiff as a foreign corporation, does not render proof of incorporation requisite.
    The rule that negotiations or proposals looking towards the settlement of a controversy without action cannot be received in evidence as admissions of liability, does not extend to the admission of a disputed fact, even though made in the course of such negotiations.
    Appeal by the defendant, Benjamin A. Trowbridge, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 21st day of June, 1892, upon a verdict in favor of the plaintiff rendered at the New York Circuit, and also stated in the notice to be from an order denying a motion for a new trial, although no such order appeared in the case on appeal.

      The action was brought to recover upon two promissory notes, alleged in the complaint to have been made by the defendant, payable to the order of Don A. Gaylord & Co., and duly transferred to the plaintiff before maturity.
    The first paragraph of the complaint was as follows:

      “ First. That the plaintiff is a foreign corporation duly organized under and by virtue of the laws of the State of Kentucky, with its principal place of business in the city of New York.”
    In the answer, the defendant states: “ 1. He has no knowledge or information sufficient to form a belief as to the matters alleged in the first paragraph of said complaint.”
    The portion of the answer referred to in the opinion as claimed by the defendant to set up a counterclaim, is as follows:
    “ II. And for second, separate and distinct defense herein defendant shows:
    “ That whatever note or notes were given to or obtained by said Don A. Gaylord & Company, were given and obtained under and by virtue of certain promises and undertakings by said Don A. Gay-lord & Company to defendant, made to obtain possession of said notes, which promises and undertakings were not fulfilled.

      “ That defendant had a contract with said Don A. Gaylord & Company to furnish certain material for premises in the city of New York, on which he was then building.
    “ 2. That under such contract defendant paid said Don A. Gay-lord & Company large sums of money, both in cash and by notes, which latter have all been paid except the last two.
    “ That when the last two notes were given, Don A. Gaylord & Company were behind with materials under their contract, and had been notified in writing that defendant would purchase elsewhere and hold them for the difference. That Don A. Gaylord & Company then and there promised if the said notes were given they would deliver the short material that very day, and that no further delay should occur.
    “ That upon these representations said notes were given, and Don A. Gaylord & Company did not fulfill their agreement, and did not deliver the material as agreed, but sold the same to other parties for cash.
    “ That by reason of the breach of contract by Don A. Gaylord &
      Company the defendant sustained damage by reason of the delay and loss of income from said property exceeding in amount the sum of $1,000.
    “ That the complaint in this case is verified by Don A. Gaylord, who is secretary of plaintiff, and plaintiff, therefore, took the notes in question charged with knowledge of the defense hereinbefore set up, and defendant denies on information and belief that said Don A. Gaylord & Company delivered said notes to plaintiff for value.
    “ Wherefore defendant demands judgment herein dismissing the complaint, with costs.”
    The answer, as well as the complaint, were verified.

      J5. G. Ghetwood, for the appellant.

      George 8. Coleman, for the respondent.

       See Richardson v. Hartmann, ante, page 9.

   O’Brien, J.:

This action is brought to recover the amount of two promissory notes, the consideration of which was the furnishing of materials to be used in the construction of certain houses, and the defense to which was that this contract was never fulfilled, and that the material furnished was fully paid for. As there is no order denying a motion for a new trial, and no statement that the case contains all the evidence introduced at the trial, the only questions presented for our consideration are those of law arising upon exceptions, which, in the order in which they are presented, we will briefly consider.

The answer having set up what defendant insists was a counterclaim, and no reply being made thereto, the defendant moved for judgment on the pleadings, which he now claims it was error not to have granted. We have examined the answer, and agree with the trial judge that it does not contain a counterclaim, no affirmative relief being .demanded thereon, and being pleaded as a defense and treated as an offset.

At the close of plaintiff’s case, defendant’s counsel moved to dismiss the complaint, on the ground that the plaintiff was a foreign corporation, and that there is no proof whatever of its incorporation. The trial judge at first inclined to the view that this motion must be granted on account of the statement in the opinion upon the former appeal (62 Hun, 471), that the plaintiff having assumed the

"burden of proving the incorporation, “ the objection that the incorporation of the plaintiff was not established would have been well talcen had not improper evidence proving the incorporation been admitted without objection,” no claim being made that there was any such issue. By section 1776 of the Code of Civil Procedure, it is provided that plaintiff need not prove upon the trial the existence of the corporation, unless the answer is verified and contains an affirmative allegation that the plaintiff * * * is not a corporation.”

The case of Vulcan v. Myers (58 Hun, 161), in construing this section in connection with section 1779 of the Code, held that the former section was equally applicable to foreign as well as to domestic corporations.

Unless, therefore, there is an affirmative allegation that the plaintiff, or the defendant, as the case may be, is not a corporation, the existence of the corporation need not be provod. Here the answer alleged that defendant has no knowledge or information sufficient to form a belief ” as to the organization of the plaintiff as a foreign corporation. In the case referred to (Vulcan v. Myers) the answer contained the following denial: “ Upon information and belief, they •deny the plaintiff ever was or now is a corporation.” This latter was held insufficient to put plaintiff to its proof, and we think the form of denial in the present answer is much weaker; and under the authority of that case, which construes the sections of the Code and shows just when proof of organization must be made, it cannot be held that proof of incorporation is required.

The next exception refers to error assigned by appellant in admitting, over objection, evidence as to a settlement. An examination of the record, however, will show that, while the court asks a question as to whether any proposition was received from the defendant, which was objected to, the answer, which was “ yes, sir,” cannot be held to have prejudiced the defendant. The subsequent testimony of what actually occurred was not objected to; and while, in a proper case, we are disposed to enforce the rule, as held in Slingerland v. Norton (58 Hun, 558), that negotiations or proposals looking towards the settlement of a controversy without action, cannot be received in evidence as admissions of liability, still this rule does not extend to the admission of a disputed fact, even though made in the course of such negotiations. The evidence adduced was not for the purpose of showing a compromise, or an offer to compromise, but it called out a statement of fact as to defendant’s liability as shown by such statement. Taking, however, appellant’s view, that it was evidence as to a settlement, such evidence was received without objection, and thereafter no motion was made to strike it out.

In addition, certain criticisms are made upon the charge of the trial judge, but as no exceptions were taken thereto no question is presented for our consideration. Thus it is claimed that the judge, in his charge, dwelt on the giving of the notes by the deceased agent, with knowledge of Gaylord’s shortcomings, and that this prejudiced the defendant, by making the case turn on evidence given by Gay-lord in his own behalf, of personal and private transactions between' him and the deceased, which could not be contradicted and should have been excluded. While in the absence of an exception, ho question is raised upon the judge’s charge, the evidence given by Gaylord as to his interviews with the agent of the defendant, who has since died, was objected to; but the point thus presented we do not regard as serious.

As appears from the record, Gaylord testified that he saw the defendant and asked him for the final payment, and that the defendant told him to see Mr. Yenni and get it fixed up and arrange a settlement; that he thereuj)on called upon Mr. Yenni, and it was to the question What matters did you discuss at that interview ? ” that the objection was made and the exception taken. No ground of objection was given, but if we take the one now presented, that it was incompetent and improper to have allowed Gaylord to testify to conversations had with the agent of the defendant, the latter being since deceased, it is evident that there is no merit in the objection. It had been made to appear that Yenni was the defendant’s agent and, as we have seen from what just preceded the giving-of this testimony, Gaylord stated that the defendant told him to see Yenni and make the arrangements with him. Under such circumstances it was competent to show just what occurred between Gay-lord, who was acting for plaintiff, and Yenni, who was concededly the agent of the defendant, and to whom Gaylord had been referred by the defendant himself.

Upon an examination of the record, we do not think that any of the exceptions are valid, and the judgment, therefore, should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Yan Brunt, P. J.:

text:
    Hector M. Hitchings, Respondent, v. The St. Louis, New Orleans and Ocean Canal and Transportation Company, Appellant, Impleaded with Others.

      Indorsement, by a corporation, of commercial paper — cmthority of the officer who indorses the corporate name — receipt, by the corporation, of the proceeds of a discount■ — evidence as to good faith in the acceptance of a note.

      Semble, that a resolution by the board of directors of a corporation, “that all the banking business for and in behalf of this company be and is hereby vested in the president, Gen. Peter J. Claassen, who is hereby authorized to sign all checks, drafts and monetary obligations of any kind against and for any bank deposits wheresoever made in the company’s name,” does not authorize indorsements of commercial paper by the president of the corporation in its behalf.
    Where an officer of a corporation discounts a note made to the order of the corporation and the corporation receives the money therefor, he thereby becomes a bona fide holder of the note and can transfer it to anybody he sees fit.
    Where, upon the trial of an action upon a promissory note, the good faith of the plaintiff in the acceptance of the note is challenged, he has a right to show the circumstances under which he took the note and the inquiries he made in regard to its regularity; and where such inquiries were made of an officer of a corporation by which the note purported to have been indorsed, and which corporation is the defendant in the action, the declarations of such officer in response thereto are competent, as showing the bonafides of the plaintiff in the acceptance of the note, and when received for that purpose they are not open to the objection that they have been received as admissions made by the defendant.
    Appeal by tbe defendant, the St. Louis, New Orleans and Ocean Canal and Transportation Company, from a judgment of the Supreme Court, entered in the office of the clerk of the city and eounty of New York on the 17th day of June, 1892, upon a verdict in favor of the plaintiff, rendered at the New York Circuit, and from an order entered on the 7th day of July, 1892, denying defendant’s motion for a new trial upon the minutes.

      G. W. Green, for the appellant.

      Sector M. Sitc/dngs, respondent in person.
   Yan Brunt, P. J.:

This action was brought upon a note made by John Stil well & Co.,, to the order of the defendant company, which was indorsed by P. J. Claassen, the president of the defendant company in its name, and by James A. Simmons and P. J. Claassen individually, and by said Claassen transferred to the plaintiff on the 21st of March, 1890, before maturity. The answer was substantially a general denial.

It was claimed upon the trial by the defendant that the president of the defendant had no authority to indorse promissory notes for it. In support of such authority a resolution duly passed by tho defendant’s board of directors on the 2d of October, 1889, was offered in evidence, by which it was resolved : “ That all the banking business for and in behalf of this company be and is hereby vested in the president, Gen. Peter J. Claassen, who is hereby authorized to sign all checks, drafts and monetary obligations of any kind against and for any bank deposits wheresoever made in the company’s name.” And also a resolution claimed to • have been passed on the 30th of December, 1889, by which it was: “ Ensolved,.that the making of certain notes by the president of this company in the name of the company through and to James A. Simmons, and also the indorsing by the president in the name of the company of certain notes through and to James A. Simmons be and they are hereby approved.”

The plaintiff also examined said Claassen as a witness in his behalf, and Claassen testified that he gave a check to the canal company for the proceeds or near the proceeds of that note; and again that he knew he gave the proceeds of that note to the canal company, and that after the discount of the promissory note by him he paid out the note to the plaintiff. The plaintiff also introduced in evidence the declarations made by Claassen to him at the time of the receipt of the note. The introduction of this testimony was duly objected to and the objection overruled and defendant duly excepted. The case having been submitted to the jury, and a verdict rendered for the plaintiff, and a motion made for a new trial having been denied, from the judgment and order thereupon entered this appeal is taken.

It is probably true that the first resolution above referred to, did not authorize indorsements of commercial paper by the president of this corporation on its behalf, as it would seem that the authority given by that resolution was to sign checks, etc., against any bank deposits which might stand in the company’s name ; and that this was the extent of the authority conferred by that resolution. It is also urged that the second resolution was no ratification of the indorsement already . made because there was no legal meeting of the board. It is to be observed in passing that it is claimed by the counsel for the appellant that this resolution was allowed in evidence against the objection of the defendant that there was nothing to show a properly-called meeting. But we have examined the case in vain to find any such objection spread upon the record. At the time the resolutions were offered, it appeared that they were taken from the minute books of the corporation. It is true that a general objection was taken to their admission and the objection overruled and the resolutions were read. But the record also' contains an admission by defendant’s counsel, that if the witness who was then being examined stated that they were copies that they might go in; and the witness thereupon testified that they were copies. Subsequently, upon the cross-examination of the witness producing the resolutions, it appeared that the second resolution was passed at what was called an impromptu meeting, three directors being in the office, and without any notice to the other two directors the resolution was passed. The weight to be given to that resolution was, therefore, a question which was to be determined during the progress of the trial. The defendant’s counsel asked the court to charge the jury that a board of directors had no authority to pass a vote authorizing the use of corporate indorsements without notice to each member of the board after meeting.at which such vote was passed. The court said, “ That is the general rule, but you may take into consideration the course of dealing of a particular corporation. "With that qualification I charge the proposition.” To which statement of the law the defendant took no exception. There seems, therefore, to have been no errors committed upon the part of the court, either in the admission of the resolution in question, or in the submission of the question to the jury, which are raised by any exception .taken by the counsel for the defendant. There is also in the case positive evidence of the president of this corporation that he discounted the note, and that the corporation received the money therefor, which, if the jury believed, made the president a bona fide holder of the note and he could transfer it to anybody to whom he might see fit.

In connection with this testimony a certain check drawn by the witness on Keene & Co. was shown to him. He testified that he could not say positively that that was the check he gave for the note, hut it looked to him that it was a check he gave on account of the proceeds of the note; whereupon said check was offered in evidence without objection. Subsequently the plaintiff’s counsel offered some other checks drawn by Olaassen on Keene & Oo. to the order of one Bailey, the treasurer of the defendant, which were objected to as not being properly proved- — that they simply showed that they were checks drawn by Olaassen on Keene & Co., and had no connection with the transaction in issue; which objection was overruled, and at a subsequent stage of the case after additional testimony had been taken, the checks were put in evidence without objection.

The only point which is now presented by the appellant is that the check which Olaassen thought he might have used with which to discount the note hears no official stamp or evidence of cancellation, nor was there any evidence to show that it had ever been paid, and, therefore, it was error to admit it in evidence. But as already seen no such objection was taken at the time the check was offered in evidence, it being read without objections.

As to the other checks, they seem to a considerable extent to have contradicted the testimony of Bailey given upon the stand in reference to his connection with the various transactions, and, therefore, somewhat affected his testimony in reference to his contradiction of the evidence of Olaassen that he had paid to the corporation the money upon the discount of the note in question.

The only other objection which it seems necessary to notice is the claim that it was error to admit the declarations of Olaassen made long after the alleged indorsement as admissions against the defendant. ~VVe do not understand that such declarations were received as admissions against the defendant. The good faith of the plaintiff in the acceptance of the note was challenged upon the trial, and he had a right to show the circumstances under which he had taken the note, and the inquiries he made in regard to its regularity. And these inquiries made of the president of the defendant were cer-‘ †airily competent, if not as admissions upon the part of the defendant, as showing the bona fides of the plaintiff in the acceptance of the note.

The questions involved were submitted by the court to the jury without exception upon the part of the defendant, and we see no reason for disturbing the verdict rendered by the jury.

The judgment and order appealed from sho.uld be affirmed, with costs.

O’Brien and Eollett, JJ., concurred.

Judgment and order affirmed, witli costs.


author: Follett, J.:

text:
    Emily A. Emerson, Appellant, v. Jesse Milton Emerson, Jr., Respondent.

      Husband and wife —separation from bed and hom'd —alimony.

    The alimony allowed in a judgment of separation from bed and board, for the support of the wife and three daughters awarded to her custody, fixed at §200 a month, where the wife had no means for supporting herself and daughters except as derived from her husband, and the husband had an. income of about §9,500 a year.
    Appeal by the plaintiff, Emily A. Emerson, from so much of a judgment of the Supreme Court rendered at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 16th day of November, 1892, in an action for separation from bed and board, as awards the plaintiff only the sum of $150 per month as alimony for the support of herself, and the support, maintenance and education of three of the children of the parties.

      Blade <& King, for the appellant.

      Ghadles J. Ilardy, for the respondent.
   Follett, J.:

This action for a separation from hed and board on the ground of desertion was begun October 7,1890. The desertion was not denied, but it was alleged in the answer that it was justified hy the ill-treatment of the defendant by the plaintiff, which was also set up as a counterclaim, and a separation was prayed for by him.

September 8, 1871, the parties intermarried, and thereafter lived together as husband and wife until June 26, 1889, when the defendant abandoned the plaintiff and has since refused to live with her. At the date (November 16, 1892) of the entry of the judgment herein, the parties had four living children : Jessie M., born June 13, 1872, who will become of full age June 13, 1893 ; Edward G-., born October 11, 1874, who will become of full age October 11, 1895 ; Florence E., born October 7, 1876, who will become of full age October 7, 1897; and Adel A.,, born September 3, 1882, who will become of full age September 3, 1903. By the judgment, the custody of the son Edward G. was, at his request, awarded to the defendant, but the custody of the three daughters was awarded to the plaintiff, with $150 per month alimony for the support of herself and daughters, without costs to either party.

It is alleged in the complaint, and not denied in the answer, that at the time of the aforesaid marriage, the defendant was wholly without means, * * * that almost all of said property was acquired while the plaintiff and defendant lived together as man and wife in the State of Texas, and almost all of such property, consisting of lands and personalty and interest in the business of J. M. Emerson & Co., in San Antonio, Texas, is situated ill the State of Texas.”

The court found that the defendant owned realty in San Antonio, Texas, which produces a net income of $2,396.89 per year; that he is one-half owner of the business of J. M. Emerson & Co., of San Antonio, which has since January 1, 1889, produced net annual profits of $2,178.76 ; that he owns a one-fourtli interest in the firm of J. M. Emerson & Sons, of New York, the net profits of which have-been since January 1, 1890, at the rate of $4,000 to $4,500 per year; that he is in receipt of a salary from J. M. Emerson & Sons of $100 per month when employed, which amounted to $900 per annum, for the year preceeding the entry of the judgment, thus making his annual income from $9,475.15 to $9,975.15.

It was also found that the plaintiff had no property or means for supporting herself and daughters, or paying the costs of the litigation, except as derived from the defendant. The evidence in regard to the defendant’s property was given by himself, by' one of his partners and his agent. The undisputed evidence is that the eldest daughter is in bad health, and that the youngest has for several years been subject to epileptic fits, and requires constant medical attention. Between the date of the defendant’s desertion of the plaintiff and the trial, he had furnished her and the three daughters with $122 per month, which the court found “ wholly inadequate to properly support, maintain, feed and clothe the plaintiff and the said three daughters, in view of the defendant’s station in life and financial circumstances, and to properly educate the said children.”

The judgment should be modified by increasing the amount of the alimony to $200 per month, from March 1, 1892, with leave to either party in case of a change in the circumstances of either party to hereafter apply for modification of this decree in respect to alimony, and as so modified, affirmed, with costs.

Van Brunt, P. J., concurred.

Judgment modified as directed in opinion, and as modified, affirmed, with costs.


author: Follktt, J.: O’Brien, J.

text:
    Andrew Morris, Respondent, v. The Eighth Avenue Railroad Company, Appellant.

      Street railway — personal injury to passenger — contributory negligence — section S3 of chapter 565 of 1890 — excessive damages.

    Where, in an action against a street railroad company to recover damages for a personal injury received in hoarding a car, the plaintiff and several disinterested witnesses testify that the car was standing still when the plaintiff began to get on it, and the only testimony to the effect that the car was then in motion is given by the conductor and driver of the car, as witnesses for the defendant company, it cannot be said that a finding in favor of the plaintiff on that issue is contrary to the weight of evidence.
    When, on the trial of such an action, ah issue is raised as to whether the plaintiff was intoxicated at the time of the accident, evidence on the part of the defendant company offered to show that on some occasion during two years prior to the accident the plaintiff had been laid off from work for drinking (there being no offer to show that the plaintiff was a man of intemperate habits, or that he had drank too much on any particular occasion), is properly excluded as not sufficiently definite as to time or circumstance.
    An instruction to the jury in such an action, that intoxication of the plaintiff at the time of the accident is of no consequence “ unless it made him more careless,” is not objectionable, when it is apparent from other parts of the charge that the jury could not have understood from the word “more” that the court intended to instruct them that the plaintiff might have been somewhat careless and still succeed in the action.
    Section 53 of chapter 565 of the Laws of 1890 (the General Railroad Law), which provides that no railroad corporation shall be liable for any injury to any passenger while on the platform of a car, in violation of the printed regulations of the company, if applicable to street railways (which is not decided),does not apply to a case where a passenger injured on a street railway -car was not voluntarily riding on the platform, but was simply using it as a means of entering the car, or where the question as to whether the car was crowded so that there w'as not accommodation for the passenger inside of it, was a disputed question of fact.
    A verdict for $9,000 damages was rendered for the loss of a leg by a mason’s tender, whose wages were two dollai’S a day when he was at work.

      Held, that the verdict was excessive, and the judgment should be reversed unless the plaintiff stipulate to reduce the amount of the damages to $5,000 (Q’Brien, J., dissenting).
    Appeal by the defendant, the Eighth Avenue Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 7th day of October, 1892, in favor of the plaintiff, upon a verdict rendered at the New York Circuit, and from an order denying the defendant’s motion for a new trial on the minutes, made and entered on the 5th day of October, 1892, in an action brought to recover damages for a personal injury.
    Section 53 of chapter 565 of the Laws of 1890 (the Railroad Law, chapter XXXIX of the General Laws) contains the following provision: “No railroad corporation shall be liable for any injury to any passenger while on the platform of a car, or in any baggage, wood or freight car, in violation of the printed regulations of the corporation, posted up at the time in a conspicuous place inside of the passenger cars, then in the train, if there shall be at the time sufficient room for the proper accommodation of the passenger inside such passenger cars.”

      John M. Scribner, for the appellant.
    ¿r. Wa-shburne Smith for the respondent.
   Follktt, J.:

At about half past seven o’clock of Saturday evening, September 27, 1890, at the corner of Eighth avenue and Forty-first street, one of the defendant’s cars passed over the plaintiff’s right leg, crushing it near the ankle so. that amputation was necessary. The plaintiff alleged that he signaled the driver, that the car was stopped, and while he was entering by way of the front platform, the car was suddenly started and he was thrown under the wheel. At this time the car was moving south. The plaintiff left the east sidewalk of the avenue and attempted to board the car as it crossed Forty-first street.

But two questions of fact were litigated: (1) Was .the car in motion when the plaintiff attempted to board it? (2) Was the plaintiff intoxicated at the time of the accident ?

The plaintiff, Fisher, Maloney and McDowell testified that the car was standing still when the plaintiff began to get on to it. Two of the defendant’s witnesses so testified, Radley and McFaden. The only witnesses who testified that the car was moving when the plaintiff attempted to enter it, were the conductor and driver. Several of the witnesses, who testified that the car was not moving when the plaintiff began to get on to it, had no apparent interest in the result of the trial, or feeling for or against either litigant, and it cannot be said that this issue was found contrary to the weight of evidence. The plaintiff and four witnesses testified that he was not intoxicated at the time of the accident. Radley, a witness sworn for the defendant, testified that the plaintiff, in passing from the sidewalk to the car, walked unsteadily and appeared to be intoxicated. Giblin, a policeman, testified that the plaintiff acted like, a man under the influence of liquor. The car driver testified that “he might be slightly intoxicated, but then I could not rightly tell.”

Opposed to this was the evidence of the four witnesses referred to, one of whom was a surgeon who examined the plaintiff, as he lay on the sidewalk, and the other three had better opportunities for knowing the condition of the plaintiff than the defendant’s witnesses. Whether the plaintiff was, or was not, intoxicated was a question for the jury and its verdict should not be disturbed.

There was some dispute over the question whether the car was crowded upon the occasion. The defendant insists that it was not, and that it was negligent for the plaintiff to attempt to enter the car by the front platform. Defendant’s conductor testified that ten seats were unoccupied, while on the other hand, Eisher swore that the car was very full, and McDowell, that it was so crowded people were standing between the seats. This issue was a fair question for the jury. In brief, every essential fact necessary to support the verdict was sufficiently established so that it cannot be set aside as against the weight of evidence. There was no error in the refusal of the court to dismiss the complaint when the plaintiff rested, or at the close of the evidence. The appellant insists that the court erred in refusing to permit the witness Delehanty to answer the following question: Q. “ During the time of the plaintiff’s employment by you, did you have occasion at any time to lay him off for drinking beer ? ” Objected to by plaintiff’s counsel.

The Court. — “ I think that is too remote.”

Defendant’s Counsel.— I can’t fix it on the day that the accident happened as I expected from this witness, but I propose to show that on more than one occasion, that he had been laid off by reason of his use of beer.”

The Court. — “ That might be quite true, and not touch this case. I exclude that.” To this ruling the defendant excepted. The witness testified that the plaintiff had been in his employ for two years, and we think that the question was not sufficiently definite as to time or circumstance to make the refusal of the court to permit it to be answered, error. The defendant did not offer to show that the plaintiff was a man of intemperate habits, nor that he had drank too much on any particular occasion, near to, or remote from, the date of the accident. Upon the question of intoxication, the court charged, at the defendant’s request, “ If the jury believe from all of the evidence in this case that the plaintiff, at the time of his injury, was intoxicated, and if the jury believe that the plaintiff’s intoxication caused or contributed to produce the injury received by him, then the plaintiff cannot recover, and the defendant is entitled to a verdict.”

The plaintiff requested the court to charge: That if the jury find from the evidence that the plaintiff was intoxicated, that is a. matter of no consequence, unless the jury further find that his intoxication contributed to the injury.”

The Court. — “ That is so; the intoxication is of no consequence, unless it made him more careless.” To this instruction the defendant excepted. It is conceded that if the word “ more ” had been omitted, the instruction would have been unexceptionable. We do-not think that the jury could have understood from the word more,” that the court intended to instruct them that the plaintiff might have been somewhat careless, and still recover, for the jury had been instructed that any negligence of the plaintiff contributing to the injury would defeat a recovery, and that the burden was upon him to show that he was not negligent.

The appellant insists that the plaintiff cannot recover because he was riding on the platform of the car, in violation of the printed regulations posted on the car, pursuant to section 53, chapter 565, Laws of 1890. Assuming that this section is applicable to street, railways, which we do not decide, the answer to the position is, that, the plaintiff was not voluntarily riding on the platform, but was, simply using it as a means of entering the car. Besides, the corporation is not exempted from damages for injuries received while-riding on a platform, unless there is at the time sufficient room for the proper accommodation of the passengers inside the car. Whether this car was crowded or not, was a disputed question of fact.

The verdict in this case was for $9,000. The evidence shows that, the plaintiff had been employed for two years as a mason’s tender, receiving two dollars per-day when he was able to secure work. The-verdict at five per cent interest, represents an earning power of $450, considerably more, probably, than the plaintiff could have-earned. He was entitled to be compensated for the pain and suffering which he endured, and for his diminished ability to earn money in the future. The interest on the verdict indemnifies the. plaintiff for his diminished earning power, and the principal sum is in addition. This, we think, is more than compensatory damages,, and that a verdict of $5,000 is all that the evidence warrants.

The judgment and order are reversed, and a new trial granted,, with costs to abide the event, unless the plaintiff stipulates within twenty days after the entry of the order to reduce the amount of the. damages to $5,000, in which event the judgment, as modified, and the order are affirmed, without costs to either party.

Yan Brunt, P. J., concurred.

O’Brien, J.

I concur in all but the conclusion. The facts warrant a recovery for the amount awarded by the jury, and I think the judgment should be affirmed.

Judgment and order modified, as directed in opinion, and as modified, affirmed, without costs to either party.