author: Van Brunt, P. J. :

text:
    The People of the State of New York ex rel. Augustus M. Field, Appellant, v. The Board of Aldermen of the City of New York, Respondent.

      Territory annexed to the city of New York by chapter 934 of 1895 — ecmnot be included in any Assembly district of the city of New York — construction of the word “county" as used in the Gonstitution of 1894.
    By section 3 of article 3 of tiie Constitution of 1894 of the State of New York, which fixes the number of Senators at fifty, and divides the State into Senate districts, defining with particularity the limits of each district, twelve Senators were allotted to the county of New York, and each Senate district was described by metes and bounds, the twenty-second Senate district consisting of the county of Westchester.
    Section 5 of article 3 of the said Constitution provided that “ until after the next enumeration, members of the Assembly shall be apportioned to the several counties as follows : * * * New York county, thirty-five members; * * * Westchester county, three members. * * * In any county entitled to more than one member, the board of supervisors, and in any city embracing an entire county and having no board of supervisors, the common council * * * shall assemble * * * and divide such counties into Assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be, of convenient and contiguous territory, in as compact form as practicable, each of which shall be wholly within a Senate district formed under the same apportionment, equal to the number of members of Assembly to which such country shall be entitled."

    By chapter 934 of the Laws of 1895, approved June 6, 1895, certain territory theretofore constituting a portion of the county of Westchester was annexed to and made a part of the city and county of New York; the board of aider-men of which city, after said act became a law, in pursuance of the requirements of the Constitution of 1894, divided the city and county of New York into Assembly distribts, but omitted and refused to include such annexed territory in any Assembly district of the city and county of New York.
    In a proceeding instituted by a voter residing in said annexed territory to compel the board of aldermen to reconvene and to reapportion the Assembly districts of the city and county of New York so as to include in an Assembly district the territory so annexed,

      Held, that the only function to be performed by the board of aldermen was to divide the city and county of New York, as apportioned by the Constitution into twelve Senate districts, into thirty-five Assembly districts, each of which Assembly districts should be wholly within a Senate district formed under the apportionment made by the Constitution;

      That the territory so annexed, to the city and county of New York hy chapter 934 of the Laws of 1895 was not a part of the city and county of New York at the time of the constitutional apportionment, such apportionment having keen completed when the Constitution went into effect, which was before the passage of said annexation act;
    That the Legislature had no power to change the boundaries of a Senate district under such Constitution until after the enumeration to be made in 1905 and every ten years thereafter;
    That the word “ county,” as used in the Constitution, refers to fixed territory and not to political organizations, and that the board of aldermen of the city of New York had no power to include the annexed territory in any Assembly district within said city and county. v
    Appeal by tbe relator, Augustus M. Field, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of July, 1895, denying his motion for a peremptory writ of mandamus.

      Wm. B. Hornblower and McCready Sykes, for the appellant.

      John Proctor Clarke, for the respondent.

      Wm. D. Guthrie, for town of Westchester, etc.

       Decided August, 1895.

   Van Brunt, P. J. :

The relator, who has hitherto been a voter in the town of West-chester, applied to the court below for a peremptory writ of mandamus against the board of aldermen of the city of New York, directing them to reconvene and to reapportion the Assembly districts of the city and county of New York.

The grounds of the application were that by chapter 934 of the Laws of 1895, approved June 6, 1895, certain territory theretofore constituting a portion of the county of Westchester was annexed to and made a part of the city and county of New York, and that the board of aldermen of said city, who, in pursuance of the requirements of the Constitution of 1894, had, on the lltli day of June, 1895, divided the city and county of New York into Assembly districts, had omitted and refused to include such territory in any Assembly district of the city and county of New York.

The motion was denied, and this appeal was taken.

By section 5 of article III of tlie Constitution of 1894, it is provided:

“ Until after tbe next enumeration, members of tbe Assembly shall be apportioned to tbe several counties as follows: * * * New York county, thirty-five members; * * * Westchester county, three members. * * *
In any county entitled to more than one member, the board of supervisors, and in any city embracing an entire county and having no board of supervisors, the common council, ox*, if there be none, the body exercising the powers of a common council, shall assemble on the second Tuesday of June, one thousand eight hundred and ninety-five, and at such times as the Legislature making an apportionment shall prescribe, and divide such counties into Assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be, of convenient and contiguous territoiy in as compact form as practicable, each of which shall he wholly within a Senate district formed under the same apportionment, equal to the number of members of Assembly to which such country shall be entitled, and shall cause to be filed in the office of the Secretary of State and of the clerk of such county, a description of such distiicts, specifying the number of each district and of the inhabitants thereof, excluding aliens, according to the last preceding enumeration, and such apportionment and districts shall remain unaltered until another enumeration shall be made, as herein provided; but said division of the city of Brooklyn and the county of Kings to be made on the second Tuesday of June, one thousand eight hundred and ninety-five, shall be made by the common council of the said city and the board of supervisors of said county, assembled in joint session. In counties having more than one Senate district, the same number of Assembly districts shall be put in each Senate district, unless the Assembly districts cannot be evenly divided among the Senate districts of any county, in which case one more Assembly district shall be put in the Senate district in such county having the largest, or one less Assembly district shall be put in the Senate district in such county having the smallest number of inhabitants, excluding aliens, as the case may require. No town, and no block in a city inclosed by streets or public ways, shall be divided in the formation of Assembly districts, nor shall any district contain a greater excess in population over an adjoining district in the same Senate district than the population of a town or block therein adjoining such Assembly district. Towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens; but in the division of cities under the first apportionment regard shall be had to the number of inhabitants, excluding aliens, of the election districts according to the State enumeration of one thousand eight hundred and ninety-two, so far as may be, instead of blocks. Nothing in this section shall prevent the division, at any time, of counties and towns, and the erection of new towns by the Legislature.”

Section 3 of article III of the Constitution of 1894 fixed the number .of senators at fifty, and divided the State into Senate districts defining with particularity the limits of each district. Twelve senators were allotted to the county of New York and each Senate district was described by metes and bounds. The twenty-second Senate distinct consisted of the county of "Westchester.

The only function to be performed by the board of aldermen was to divide the city and county of New York, as apportioned by the said Constitution into twelve Senate districts, into thirty-five Assembly districts in accordance with the requirements of said section 5 of article III, each of which districts should be wholly within a Senate district formed under .the apportionment made by the Constitution and which was then in force.

If, therefore, under such Senate apportionment, the territory in dispute was a part of the city and county of New York, it should have been included within some Assembly district of that county.

It is plain that it was not a part of that county under such apportionment, for, at the time this apportionment was made by the Constitution of 1894, such territory formed part of another county.

The Senate apportionment was completed when this Constitution went into effect, which was as to this subject by its terms January 1, 1895, or it would not have been an apportionment within the meaning of that term as used in the Constitution.

The framers of the Constitution claimed to recognize equality of population, with certain expressed exceptions, as the basis of the apportionment. This abundantly appears throughout the entire-instrument. When they set apart the county of Westchester as the twenty-second Senate district they set apart an integral portion of the territory of the State, with well-defined limits, containing, according to the last preceding enumeration, a population which, under their plan of apportionment, they considered to be entitled to one senator.

With regard to the future they provided, by section 4 of article III, that the Legislature might, after the enumerations to be made in 1905 and every ten years thereafter, so alter the bounds of the Senate districts that each district should “ contain as nearly as may be an equal number of inhabitants excluding aliens, and be in as compact form as practicable,” and that such districts “ shall remain unaltered until the return of another enumeration.”

It is contended by the counsel for appellant that while the Legislature could not, after 1905, disregard the principle of equality in population or change the boundaries of a Senate district, they could do so now.

No good reason is assigned for such a discrimination, and it seems to be at variance with the regulations of the Constitution governing the apportionment of Assembly districts.

As we have seen, each Assembly district must be within a Senate district formed under the same apportionment.

The Constitution had formed the Senate districts under the present enumeration, and only left to the Legislature the duty of apportioning the assemblymen among the Senate districts, and each Assembly district had to be within a Senate district as formed by the Constitution.

The argument that the word county,” as used in the Constitution, refers to political organizations and not to fixed territories, is refuted by the language of the instrument itself.

In defining the boundaries of the twenty-first Senate district, metes and bounds are established, and there is added, “ all that part of the county of New York not hereinbefore described.” If the words “county of New York” meant the political division known by that name the words “ not hereinbefore described ” would have no reasonable significance.

It seems to be manifest that the claim of the relator is contrary not only to tlie spirit but to the letter of the Constitution, and that the board of aldermen had no power to include in any Assembly district within this county the annexed territory.

The order should be affirmed, with costs to tlie respondent.

O’Brien and Stover, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    Mercantile Safe Deposit Company, Respondent, v. Collis P. Huntington and Others, as Executors, etc., of Martha Colton, Deceased, Respondents; Caroline Colton Martin and Another, as Administrators, etc., of Abigail R. Colton, Deceased, Appellants.

      Possession of a deed of gift by the grantee — its delivery presumed therefrom,- — -safe deposit box rented in two names — joint ownership of its contents and right of survivorship not presumed therefrom — gift inter vivos.

    In tlie absence of other proof, tlie finding of a deed in the possession of the-, grantee named therein is reasonably strong evidence that it had been delivered.
    One Martha Colton deposited a box in a compartment in the vault of a safe; deposit company, which was rented in the name of Miss Martha Colton or Mrs. Abigail R. Colton. Martha Colton was the only one who had been identified to the company, and who, with the exception of a person authorized by her, ever had access to the property therein deposited, Abigail R. Colton being-entirely unknown to the company, and never having so far complied with the-rules of the company as to have access to the box in question.
    After the death of Martha Colton her executors made a claim upon the safe deposit company for the contents of the box, which claim the company so far recognized as to allow them to examine the box. Subsequently the administrators of Abigail R. Colton made claim to the box and commenced a replevin action to recover the same, whereupon the safe deposit company commenced this action, praying to be allowed to interplead the defendants upon bringing' the property into court. The defendants answered, setting up as against each other their respective rights and serving- their answers upon each other, the administrators of Abigail R. Colton claiming that they were so clearly entitled to the possession of the property that the safe deposit company did not have-the right to maintain the suit of interpleader.
    Upon an appeal from a judgment in favor of the executors of Martha Colton,

      Held, that the fact that the trial court had determined that the administrators of Abigail R. Colton were not entitled to the property justified, as against the claim of the administrators of Abigail R. Colton, an interpleader upon the part of the safe deposit company;
    That the only inference to he drawn from the fact that the compartment stood in the name of “Miss Martha Colton or Mrs. Abigail R. Colton” was that it was the intention of the 'parties that either might qualify herself to have access to the box, and that it could not be concluded from such fact that there was a joint ownership in the property contained therein with a right of survivorship.
    It further appeared that Martha Colton treated the property contained in the box and its proceeds as her own; that the income thereof was deposited to her credit in her own bank account, presumably with the knowledge of Abigail R. Colton, and that Martha Colton exercised all the rights of ownership over it.
    Upon the death of Martha Colton there was found in her desk a paper under seal signed by Abigail R. Colton, by which she declared that in consideration of love and affection she had given, and thereby did give, to Martha Colton, her daughter, all her property, including money and securities, to have and to hold the same to her own use and benefit forever.

      Held, that such facts were sufficient to establish a gift inter vivos.

    Appeal by the defendants, Caroline Colton Martin and another, as administrators, etc., of Abigail R. Colton, deceased, from a judgment of the Supreme Court in favor of the plaintiff and in favor of the defendants, Collis P. Huntington and others, as executors, etc., of Martha Colton, deceased, entered in the office of the clerk of the county of New York on the 5th day of April, 1895, upon the decision of the court rendered after a trial at the New York Special Term.

      Andrew Wesley Kent, for the defendants, appellants.

      Charles W. Pierson, for the plaintiff, respondent.

      F. P. Coudert, for the defendants, respondents.
   Van Brunt, P. J. :

It appears from the evidence in this case that about October, 1882, one Martha Colton rented a compartment in the plaintiff’s vaults and paid for the same and the box placed therein. The compartment was rented in the name of Miss Martha Colton or Mrs. Abigail R. Colton. Martha Colton was the only one who was identified to the company and who ever had access to this property, except a person authorized by her. Abigail R. Colton was entirely unknown to the company and was never identified; had not so complied with the rules of the company as to have access to the safe in question. Martha Colton died on the 3d of November, 1892, and Abigail R. Colton died on the 30th of November,- 1892. The executors of Martha Colton made a claim upon the plaintiff for the contents of the safe, which the plaintiff so far recognized as to allow them to examine the box. 'Subsequently the administrators of Abigail R. Colton made claim to the box, and on the 9th of November, 1893, commenced a replevin action to recover the same. This action was then begun by the deposit company to be allowed to inter-plead the defendants upon bringing the property into court. The defendants answered, setting up, as against each other their respective rights and serving their answers upon each other. The court, upon the trial, having determined that the plaintiff was entitled to inter-plead the defendants, then proceeded to determine the rights of the parties and gave judgment. Prom the decree thereupon entered this appeal was taken.

The first question presented is: Had the plaintiff the right to maintain its suit of interpleader ?

It is urged upon the part of the appellants that it had not, because the administrators of Abigail R. Colton were clearly entitled to the possession of the property, and that there was no substantial claim to the property established as against such administrators. The result of this action seems to be a sufficient answer to this proposition. The fact that the court below has determined that the administrators are not entitled to this property certainly justified, as against the administrators, an interpleader upon the part of the plaintiff.

It is further claimed as a ground for the dismissal of the bill for interpleader that the plaintiff was not ignorant of the rights of the respective defendants. But as the court has decided' that the defendants, appellants, have no interest in the property, it is apparent that they cannot raise any such objection in an action of inter-pleader. It would seem from a consideration of the questions involved that this was eminently a case in which the plaintiff had a right to be protected in the delivery of this property.

The next question presented is whether the executors of Martha Colton or the administrators of Abigail R. Colton are entitled to the possession of the property contained in the box in question.

One of the points which is most strenuously urged by the appellants is that this box standing in the name of Miss Martha Colton or Mrs. Abigail R. Colton, they became joint tenants entitled to the property contained therein, and that upon the death of Martha the title vested in Abigail, and upon her death in her administrators.

"We think this is claiming altogether too much from the fact that this compartment in a safe deposit company was rented in the name of Miss Martha Colton or Mrs. Abigail R. Colton. It seems to us that all that can be deduced from that fact is that it was the intention of these parties that either might qualify herself to have access to the compartment box placed therein. It did not by any means determine the ownership of the contents of the safe. Nor could it be predicated upon this fact that there was a joint ownership in the property contained therein with a right of survivorship. We think it would be a proposition which would somewhat astonish the renters of boxes in safe deposit companies if it should be held that when two combine to rent a safe, the presumption would be that there was a joint ownership in all the property contained therein, even though the names of the renters were disjunctively associated.

It is further urged on the part of the appellants that certain aver-ments made by Martha Colton in a bill of complaint, and certain evidence given by her, show that she was not jjossessed of any property whatever. But it is to be observed from the evidence in this case that Martha Colton treated this property and its proceeds as her own. The income thereof was deposited to her own credit in her own bank account, and it would seem, presumably with her mother’s knowledge, that she exercised all the rights of ownership over it. Moreover, it appears that upon her death there was found in her possession a paper under seal, signed by Mrs. Colton, by which she declared that in consideration of love and affection she had given and thereby did give to her daughter Martha all her property, including money and securities, to have and to hold the same to her own use and benefit forever. This instrument is sought to be impeached by the suggestion that the handwriting of the body of the instrument was not established, and that one of the witnesses who testified to the signature of Mrs. Colton simply testified that in his opinion it -was in her handwriting. It is to be observed that the evidence in regard to the signature of Mrs. Colton to this paper was of such a character that it was introduced without objection, and that there was no attempt whatever made to prove that the signature was not Mrs. Colton’s. And for the purposes of this appeal we must assume what the evidence abundantly established, that the signature was her’s. The paper was found in the desk of Miss Martha Colton, and consequently had apparently been delivered to her. She already had the possession of the securities, they being in the box of the safe deposit company, to which she alone had access; and, as already suggested, she was continuously exercising the rights of ownership over these securities, receiving the income and depositing it to her own individual credit. All the elements of a gift inter vivos were, therefore, established, the gift and the possession of the thing given by the donee.

The learned counsel for the appellants, we think, correctly states the elements necessary to the validity of a gift i/ivter vivos: “First, that the donor must be competent to contract; second, there must be freedom of will; third, the gift must be complete with nothing left undone; foxorth, the property must be delivered by the donor and accepted by the donee; and, fifth, the gift must go into immediate and absolute effect.” The appellants claim that in the case at bar all these essentials are wanting. We have examined the record with care and attention to see upon wliat foundation this assertion rests, and we are unable to discover that there is anything wanting to establish a valid gift inter vivos. ¥e think, on the contrary, that instead of all the essentials being wanting, every one of them seems to be established by conclusive proof. The evidence is, beyond question, that at the time of the date of this instrument Mrs. Abigail R. Colton was entirely capable of contracting. There is not the slightest evidence that she was acting under any compulsion. Upon the contrary, her action was that which would be most natural under the circumstances. The gift was complete and nothing was left undone. Martha Colton had the control and custody of the securities, and the instrument of gift seems to have been delivered to her. She accepted the, gift since it appears that she collected the income from these securities and appropriated it to her own use; and the gift went into immediate and absolute effect, because, as has already been stated, Martha Colton had the securities and used them as her own.

It is true that there is a claim that at the time the deed of gift bears date Abigail R. Colton was not compos mentis. But this rests entirely upon the evidence of an alleged declaration of Martha. It is true there was also some evidence upon the part of Mr. Hunt that prior to the date of the deed of gift Abigail R. Colton was in poor health and that her mind had begun to weaken, and that her daughter never permitted her to go out alone,, and, also, that Martha had stated that her mother had been an invalid all her (Martha’s) life — that is, for forty years — and had been in feeble health for a great many years. But this by no means establishes the fact that Mrs. Colton, in 1883, was incompetent to contract. There is no proof that her mind was in such an enfeebled condition that she could not transact business understandingly. It is a common experience that persons’ faculties begin to weaken without their being idiots.

It is further urged that there was no evidence of a delivery of the instrument in question and that the paper was neither witnessed nor acknowledged, which latter allegation has nothing whatever to do with the delivery. The fact is that the paper was found in the daughter’s desk (it is true, upon the premises in which both mother and daughter resided), where it had been in the daughter’s possession. In the absence of other proof, the finding of a deed in the possession of the grantee named in the deed is considered reasonably strong evidence that it had been delivered. The same is true in regard to the claim that there was no delivery of the property by Abigail and acceptance by Martha. Martha had the property, used it as her own, received the income and deposited it to her own credit in her individual account.

It seems to us, taking into consideration all these facts, that but one conclusion can be arrived at, and that is the one reached by the learned court below.

The judgment appealed from should be affirmed, with separate bills of costs to both respondents.

Parker and Follett, JJ., concurred.

Judgment affirmed, with separate bills of costs to°both respondents.


author: Van Brunt, P. J.:

text:
    Mary Manning, Appellant and Respondent, v. John B. Manning, Respondent and Appellant.

      Heferee’s decision inconsistent with the pleading — when an action for an accounting is not established.

    The complaint in an action alleged in its first paragraph that at various times plaintiff had paid and delivered to and deposited with the defendant certain sums of money for the purpose of investment and for speculation in the purchase of stocks, bonds and personal property on her account. In the second paragraph thereof it was alleged that the defendant had made large profits therefrom on her account, and that he had neglected and refused, on demand, to account therefor or to deliver to the plaintiff said property in his hands belonging to her; that the defendant had stated to the plaintiff that there was on deposit in various savings hanks in the city of New York a sum of money belonging to her, deposited in her name, and also that he had in his possession of her property certain securities and stocks in said complaint named, and demanded judgment that the defendant pay over to the plaintiff such property, and that he render an account of all his dealings and operations with her money and property and pay over to her the balance that might be found to belong to her.
    The answer denied each and every allegation in the complaint.
    Upon the termination of the plaintiff’s ease a motion was made by the defendant’s counsel to dismiss the complaint on the ground that the plaintiff had not shown facts sufficient to entitle her to an accounting, and upon the ground that the plaintiff had not shown facts sufficient to establish the fact that any account had ever been opened by her with the defendant by advancing money to the defendant for the purposes of such account, and also that the plaintiff had failed to make out a cause of action in any aspect of the case, either at law or in equity. This motion was denied, the referee stating as the ground of the denial of the motion that there was some evidence that the plaintiff had delivered to and deposited with the defendant a certain sum of money for investment and speculation.
    The referee in his report stated as a ground of his decision that while the plaintiff had failed to establish the first paragraph of her complaint, yet, that she had proved facts, which were substantially though imperfectly alleged in the second paragraph thereof, which entitled her to the relief prayed for; that the defendant had opened an account in plaintiff’s name for the purpose of speculating in stock, and that all stock purchased was charged against it, and thus only income, interest and profits became the property of the account, and that there had resulted as income and profits therefrom certain stocks, bonds and money, which had either been delivered to and accepted by the plaintiff or were the proceeds of the sale of stocks and bonds whicH had been so delivered, and that at the time of the opening of said account the defendant intended to make a gift of the income and profits thereof to the plaintiff.

      Held, that the only canse oí action alleged in the complaint was that the plaintiff had deposited with the defendant certain sums of money for the purpose of investment and speculation on her account, and that the defendant had made large profits therefrom;
    That the recovery allowed by the referee was not based upon any such allegation but was allowed upon an alleged gift inter vivos of the profits of a broker’s account;
    That there was no ground established for an action in equity for an accounting, and that the judgment should be reversed.
    Appeal by tbe plaintiff, Mary Manning, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk •of the county of New York on the 22d day of March, 1895, upon, the report of a referee.
    Also an appeal by the defendant, John B. Manning, from so much of the decision and report of a referee, filed in the office of the clerk of the county of New York on the 6th day of March, 1895, as decides that the defendant shall render to the plaintiff an account of all the interest, income and profits arising out of or resulting from the account opened by him in her name on or about February 26, 1881, and that he pay over and deliver to her all certificates of stock, bonds, bank notes, money or other property which, upon said ■accounting, may be found so to be due her. And, also, from the interlocutory judgment entered upon said report in the office of the ■clerk of the county of New York on the 22d day of March, 1895.

      Robert D. Murray, for the plaintiff.

      John A. Straley, for the defendant.
   Van Brunt, P. J.:

The complaint in this action alleges in its first paragraph that heretofore at various times the plaintiff had paid to, delivered to, and deposited with the defendant certain sums of money for the purpose of investment and for speculation in the purchase of stocks, "bonds and personal property on her account.

The complaint further alleges in the second paragraph thereof, upon information and belief derived from the statements of the defendant, that he had made large profits therefrom on her account, and alleged that the defendant had neglected and refused, on demand, to account to the plaintiff for said profits, or to deliver to her the stocks, bonds, money and personal property in his hands belonging to her, and that, among other things, defendant had stated to her that there was on deposit in various savings banks of the city of New York a sum in excess of $3,500, belonging to the plaintiff and deposited in plaintiff’s name; and that the defendant had stated that he had in his possession, of her property, among other stocks and securities, 100 shares of the.preferred stock of the Chicago and Northwestern Railroad Company, 100 shares of the stock of a railroad company designated as Omaha Common, five shares of the stock of the New York Central and Hudson River Railroad Company, and other stocks named in the complaint.

The plaintiff demanded judgment that the defendant pay over to her such money belonging to her as he had deposited in any savings bank, that he deliver to her the bank books and vouchers therefor, and all certificates of stock belonging to her or representing stocks purchased for her, and all bonds belonging to her or purchased for her account; and that he render an account of all his dealings and operations with the money and property of the plaintiff, and pay over to her the balance that might be found to belong to her, with costs.

The defendant answered, denying each and every allegation in the complaint.

Upon the termination of the plaintiff’s case a motion was made by the defendant’s counsel to dismiss the complaint on the ground that the plaintiff had not shown facts sufficient to entitle her to an accounting; and upon the ground that the plaintiff had not shown facts sufficient to establish the fact that any account was ever opened by her with Mr. Manning, by advancing money to Mr. Manning for the purposes of that account; and also upon the ground that the plaintiff had failed to make out a cause of action in any aspect of the case, either at law or in equity.

This motion was denied, and the defendant excepted. The defendant’s counsel thereupon asked the referee to state the ground of his refusal, and the referee stated the ground to be because there was some evidence that the plaintiff had delivered' to and deposited with the defendant a certain sum of money for investment and speculation.

The case then proceeded and was finally submitted on both sides to the referee. The referee filed his report, stating, among the grounds of Ms decision, that while the plaintiff had failed to establish paragraph first of her complaint, yet she had proved facts which were substantially though imperfectly alleged in paragraph second thereof, and which entitled her to the relief prayed for; and that it was proved that the defendant, who was plaintiff’s husband, and who was engaged in business as a stock broker, had opened an account in her name for the purpose of speculating in stock, and that all stock purchased, even that with which the account was opened, was charged against it, and thus only income, interest and profics became the property of the account; and that this account had been continued to the present time, and that there had resulted as income and profits therefrom certain stocks, bonds and money which were in defendant’s possession, or subject to his control, but which had either been delivered to and accepted by the plaintiff, or were the proceeds of the sale of stocks and bonds which had been so delivered ; and that at the time of opening said account the defendant intended to make a gift of the income and profits thereof to the plaintiff.

It is apparent upon reading the complaint that the cause of action alleged, and the only cause of action alleged, is that the plaintiff had deposited with the defendant certain sums of money for the purposes of investment and speculation on her account, and that the defendant had made large profits therefrom (namely, from the sums of money deposited by the plaintiff with him for the purposes of investment and speculation) which he had neglected and refused' on demand to account for to the plaintiff; and that he had further refused to deliver to her stocks, bonds and personal property in his hands belonging to her, the allegation evidently referring to stocks, bonds, money and personal property which were the result of the money deposited by her with him for investment and speculation. Then follows an allegation that there are certain sums of money on deposit and certain stocks held by him which he refuses to deliver.

Upon this complaint, based entirely upon the allegation of deposits of money by the plaintiff with the defendant for investment and speculation, a recovery is allowed to be had for a claimed gift inter vivos of the profits of a broker’s account.

It seems to us that no such cause of action is alleged in the complaint.. "When the motion was made to dismiss the complaint, upon tbe ground that no cause of action was made out either in law or in equity, it was not intimated that the complaint could be upheld upon any such ground, and the referee expressly placed his refusal to dismiss the complaint upon the ground that there was some evidence that the plaintiff had deposited with the defendant a certain sum of money for the purposes of investment and speculation. By his subsequent report the referee has found that there was no foundation for any such claim, and gives judgment upon a ground which is not even hinted at in the complaint. It is not necessary in this condition of the pleadings for us to discuss the question as to whether any cause of action was made out. There was certainly no ground established for this action in equity for an accounting.

The judgment should be reversed upon the defendant’s appeal and a new trial ordered before another referee to be appointed by this court, with costs of appeal to the defendant to abide the event.

Follett and Parker, JJ., concurred.

Judgment reversed upon defendant’s appeal and new trial ordered before another referee to be appointed by this court, with costs of appeal to defendant to abide event.


author: Per Curiam:

text:
    George Waite Tubbs, Respondent, v. Robert C. Embree, Individually and as Trustee, etc., of Alexa C. Bowden, Appellant.

      Équity case— notice of trial thereof at Circuit — waiver of right to a trial at Special Term — laches.

    In an action brought by tbe vendee named in a contract for tbe purchase of real property to recover damages for a breach of such contract by the vendor, which consisted in the inability of the vendor, by reason of a defect in the title, to give a good marketable title to the premises at the time fixed for the closing of the sale, such inability was admitted by the answer, but, by way of avoid- ■ anee, the defendant asked for equitable relief, demanding specific performance-of the contract upon the ground that within a few days after the date for the closing of such sale all objections to the title were cured and obviated and that the deed had been tendered before the suit was brought.
    The plaintiff served notice of trial for the Circuit Court, and on the same day the defendant served a similar notice for the same term of the Circuit Court, but two months thereafter the defendant moved to strike the cause from the Circuit Court calendar and place it upon the calendar of the Special Term, which motion was denied.

      Meld, that the fact that the defendant noticed the case for trial at the Circuit Court, together with the delay in making his motion, amounted to a distinct waiver on his part, and was equivalent to a consent to try the cause at the Circuit Court, and that his motion was properly denied.
    Appeal by the defendant, Robert O. Embree, from an order of the Supreme Court, made at the New York Special Term and 'entered in the office of the clerk of the county of New York on the 15th day of May, 1895, denying the defendant’s motion to strike the cause from the calendar of the Circuit Court, and place same .on the calendar of the Special Term for the trial of equity cases.

      Robert G. Embree, for the appellant.

      Gratz Nathan, for the respondent.
   Per Curiam:

This action "was brought by the vendee in a contract for the purchase of real property to recover damages for the breach of such contract by the vendor, the breach consisting of the inability of the vendor, by reason of a defect in the title, to give a good or marketable title to the premises at the time fixed for closing. Such inability is in effect admitted by the answer, but by way of counterclaim defendant asked for equitable relief, demanding specific performance, upon the ground that within a few days after the date for closing all objections to the title were cured and obviated, and that the deed was tendered before suit brought.

It will thus be seen that by the pleadings there was practically no issue of fact requiring a jury trial, and, as the real question in the case would turn upon the counterclaim set up in the answer, which called for equitable relief, had the motion been made in time, it would liave been proper to have granted it to the extent of striking -the case from the Circuit calendar and remitting it to the Special 'Term calendar, or at least of staying the trial of the action at law until the equitable defense set up by the answer could be disposed of. The defendant, however, did not move promptly. The plaintiff served notice of trial for the Circuit Court, and on the same day the defendant served a similar notice for the same term of the Cir-unit Court, and it was not until the lapse of two months thereafter that this motion was made to strike the cause from the Circuit calendar and place it upon the calendar of the Special Term.

We think that, under the authority of Mackellar v. Rogers (109 N. Y. 468), such conduct amounted to a distinct waiver on the part of the defendant, and was equivalent to a consent to a trial at Circuit. In that case a counterclaim was interposed in an equity action, the defendant demanding affirmative judgment for money. Both parties noticed the' issues for trial at Special Term, where, upon the cause being reached, defendant demanded a trial by jury, which was denied. It was held (head-note) that “ by noticing the cause for trial at a court of which a jury forms no part, the defendant waived his right to a jury trial, and consented to a trial by the court, and that the granting or refusal of the request was matter of discretion, and its exercise not reviewable here.”

Upon the facts appearing, we think that the discretion vested in the Special Term was wisely exercised, and that the order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., Follett and O’Brien, JJ.

Order affirmed, with ten dollars costs and disbursements.


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    John Gray and Robert J. Gray, Respondents, v. The Central Railroad Company of New Jersey, Appellant.

      Unliquidated da/mages — interest thereon, when not alloioable.

    Where damages are unliquidated and the party in default has no means of ascertaining the amount of damages to which the other party is entitled, so that he may tender the same, interest upon the amount of damages is not allowable.
    Appeal by the defendant, The Central Eailroad Company of New Jersey, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 23d day of March, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 20th day of 'March, 1895, denying tlie defendant’s motion for a new trial made upon the minutes.

      Robert Thorne and Robert W. De Forest, for the appellant.

      Jacob F. Miller, for the respondents.
   Van Brunt, P. J.:

It does not seem necessary to discuss the question involving the right of the plaintiffs to the benefit of the' verdict rendered.

There are no exceptions to the admission or exclusion of evidence which require special mention. The learned court, however, seems to have erred in charging the jury that if they found for the plaintiffs they should allow interest.

It seems to be the rule in this State that where the damages are unli-quidated and the party in default has no means of ascertaining the amount of damages to which the other party is entitled, so that he may tender the same, interest upon the amount of damages is not allowable. (Mansfield v. N. Y. C. & H. R. R. R. Co., 114 N. Y. 331; McMaster v. State of New York, 108 id. 542; White v. Miller, 78 id. 396.)

In the latter case the question is examined at length, and the foregoing seems to be the conclusion arrived at.

In Mansfield v. N. Y. C. & H. R. R. R. Co. (supra) the court lays down the rule that in an action to recover damages for breach of contract, unless the means are accessible to the party to be charged of ascertaining by computation or otherwise the amount to which the plaintiff is entitled, the plaintiff should not be allowed interest on the amount of the damages found and the submission of the question as to such allowance to the jury is error.

The judgment should be modified by reducing the judgment to the sum of $2,500, the amount of the verdict, with interest thereon from the date of its rendition to the entry of the judgment, and, as modified,, the judgment should be affirmed, without costs to either party.

Follett and Parker, JJ., concurred.

Judgment modified as directed in opinion and as modified affirmed, without costs.


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    Frederick Ulbricht, Respondent, v. Alida S. Ulbricht, Appellant.

      Divorce — right of the defendant to- a jury trial — plaintiff should move to frame issues ■ — ■ laches impairing the right to alimony and counsel fees.

    In an action for divorce, brought upon the ground of adultery, a defendant ‘is entitled as a matter of right to a trial by a jury of such, issues, and can only be deprived of such right in the manner provided by the Code of Civil Procedure.
    A defendant in such an action is not bound to move the court that issues be framed in order that they may be tried by a jury; such duty rests with the plaintiff, and laches on the part of a defendant, in so moving, furnishes no reason for depriving such defendant of the benefit of an order made allowing alimony and counsel fees.
    Appeal by tlie defendant, Alida S. Ulbricht, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of June, 1895, vacating an order of June 20, 1895, made on the hearing of a motion that the plaintiff be relieved from the payment of alimony under an order of December 11, 1895. The order of June 20, 1895, appealed from provided as follows:

      “ Ordered, that the said motion be and the same hereby is in all things granted, and that the order heretofore and on the 11th day of December, 1891, made herein, requiring the plaintiff to pay alimony until the trial of this action, be and the same hereby is vacated and set aside, unless the defendant shall, within two days after the entry of this order and service of a copy thereof, with notice of entry upon her attorneys, cause and procure to be executed by her said attorneys, and delivered to the plaintiff’s attorney, a stipulation in writing, stipulating that all the issues herein be referred to a referee, to be named by the court, to hear and determine the same, and further stipulating that the defendant will accept one week’s notice of trial before said referee, and that the order of reference may provide that the trial shall proceed before said referee in his discretion from day to day.”

      Samuel Walker, for appellant.

      William S. Bronk, for respondent.
   Per Curiam:

Tliis action was brought for a divorce on the ground of adultery. The defendant was entitled as matter of right to a trial by jury of the issue of adultery; and she could only be deprived of that right in the manner provided for by the Code of Civil Procedure. She was not obligated to move the court for the purpose of framing the issues in order that they might be put in position to be tried by a jury. This was the plaintiff’s duty if he desired to have his action tried; and the fact that the defendant undertook that duty at a late day, as the plaintiff claims, is no reason for depriving her of the order which had been made in her favor for alimony and counsel fees. If there was any laches it was the laches of the plaintiff in not prosecuting his action diligently and getting it into a condition of readiness for trial.

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

Present — Van Brunt, P. J., O’Brien and Parker, JJ.

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


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    Mark H. Eisner, Respondent, v. Julius H. Eisner, Individually and as Executor and Trustee, etc., of Eliza Eisner, Deceased, Appellant, Impleaded with Others.

      Motion to compel a pleading to be made more definite and certain — when denied.

    In an action brought for the partition of a joint life estate in certain real property and for an adjudication that the plaintiff was the owner of a lien thereon and for the partition and sale, or other judicial disposition of a joint life estate in certain personal property, the plaintiff claimed under the will of his mother and set forth in his complaint a statement of what might be regarded as his summary of the provisions of such will and his construction thereof. He also alleged that the defendants were all the parties in being who were in any way interested in said estate.
    One of the defendants answering, admitted the provisions of the will creating the joint life estate in the real property as alleged, and then denied that the defendants named were the only persons in being interested, and averred that there was a defect of parties defendant in that there had not been joined as defendants certain grandchildren of the decedent, who were alleged to have contingent interests as remaindermen in said property.
    Upon a motion made by the plaintiff to compel such defendant to make his answer more definite and certain by alleging, in the words of the will, the part or portion which contained the devise, under or by reason of a contingent interest in which it was claimed that such grandchildren were necessary parties, also by numbering and separately stating iu specific and unequivocal language what parts or portions of the allegations of the answer were intended to be set up as distinct defenses to the action,

      JSeld, that it would be unreasonable for the plaintiff, who had not himself set forth the will in full nor given the provisions thereof verbatim, to insist that the defendant, who followed his example by setting forth what he considered to be a summary of these provisions and a construction thereof, should, by way of answer, be compelled to do more than the plaintiff did in stating his cause of action;
    That as the suit was an equitable one and the complaint itself was to be treated as an entirety, the answer which, without asking for affirmative relief, .was directed to a denial of the allegation that all the necessary parties were made defendants, and to a statement of the reasons (based upon a construction of the provision of the will of the testatrix) which in such defendant’s view precluded a'partition or sale, should also be treated as an entirety;
    That there were no distinct defenses which should have been separately stated or numbered.
    Appeal by the defendant, Julius II. Eisner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of July, 1895, directing that said defendant make his answer more definite and certain.

      Wright Holcomb, for the appellant.

      George W. Carr, for the respondent.
   Per Curiam:

This action is brought, first, for a partition of a joint life estate in certain real property and for an adjudication that the plaintiff is entitled to a lien thereon ; and, second, for the partition and sale, or other judicial disposition, of a joint life estate in certain personal property. Interests in these properties are claimed by the plaintiff under the will of his mother, and while the will is not set forth nor made a part of the complaint, there is set forth a statement of what may be regarded as plaintiff’s summary of the provisions of such will and bis construction thereof; and in addition to the pleading of other matters necessary and appropriate to complete the cause of action for the partition of the real property, there is an allegation that the defendants are all the parties in being who are now in any way interested in said real property. The complaint in respect to the second cause of action, relating to the personal property, contains similar allegations as to the rights derived by plaintiff under his mother’s will, the extent of his interest therein, and a statement of the persons whom he regards as having under such will an interest in such property.

The defendant Julius TI. Eisner admits the provision of the will creating the joint life estate in the real property as alleged, and then denies that the defendants named are the only persons in being, interested, and avers that there is a defect of parties defendant in that there have not been joined as defendants certain grandchildren of the deceased, all of whose names are given, and all of whom are in being, and who it is alleged have contingent interests as remain-dermen in undivided shares of said property.

Plaintiff moved to compel the defendant Julius H. Eisner, both individually and as executor, etc., to make his answer more definite and certain, first, by alleging in the words of • the will the part or portion which contains the devise under and by reason of a contingent interest in which it is claimed that such grandchildren are necessary parties; and, second, by numbering and separately stating in specific and unequivocal language what parts or portions of the allegations of said answer are intended to be set up as distinct defenses to this action.

The first ground, it seems to us unreasonable for the plaintiff, who has not himself set forth the will in full nor given the provisions thereof verbatim, to insist that the defendant here, who followed his example by setting forth what he considered to be a summary of its provisions and a construction thereof, should by way of answer be compelled to do more than the plaintiff did in stating his cause of action.

As to the second ground, as we fail to find any distinct defenses, it would be difficult to comply with the plaintiff’s request that defendant should state what allegations are intended to be set up as distinct defenses. This is a suit in equity, and as the complaint itself is to be treated as an entirety, so should this answer, which, without asking any affirmative relief, is directed to a denial of the allegation that all the necessary parties are made defendants, and to a statement of reasons based upon a construction of the provisions of the testatrix’s will which, in defendant’s view, preclude a partition or sale. We think, therefore, there were no distinct defenses requiring to he separately stated or numbered, and that the order making such a direction was improperly granted.

That such an order is appealable has been many times held by this court. It should accordingly be reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.

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


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    Joseph H. White, Appellant, v. John Koster and Albert Bial, Respondents.

      Motion to compel a pleading to be made more definite and certain — not allowed so as to disclose evidence — denials cannot be incorporated into an affirmative defense.

    As an affirmative defense, not including a counterclaim, necessarily admits and avoids the cause of action set out in the complaint, a denial, general or specific, cannot be included in and form a part of such defense. A denial may be pleaded in the same answer as a separate defense, but not as a plea of new matter.
    In an action brought to’recover damages, alleged to have been sustained by the breach of a contract, the complaint alleged that the plaintiff’s assignor entered into a contract with the defendants by which she agreed to take part in certain theatrical performances to be given by the defendants; that she was induced to make such contract by the representations of the defendants that they had a variety theatre in which they were authorized to conduct a theatrical business; that the defendants did not have, at the time of the making of the contract or during the period provided for its continuance, a theatrical license allowing them to conduct a theatre of any kind at such place.
    The answer alleged possession of a place on Twenty-third street in New York city by the defendants where public performances, of such character as that contemplated in the contract, could lawfully be given, and that the defendants held a license from the mayor of New York to maintain such place for public performances.

      A motion was made by tlie plaintiff to make tlie answer more definite and certain by stating the character of the license which the defendants held from the mayor of the city of New York to maintain such place of amusement on Twenty-third street.

      Sold, that the answer definitely and certainly put in issue the allegations of the complaint referred to and that more than that the plaintiff was not entitled to-have upon such a motion.
    The defendants alleged at the opening of their second defense as follows:
    “ Reiterating the denials and repeating- the allegations contained in their first defense.” The notice of motion aforesaid also asked that there be stricken out from the second defense the words “the defendants reiterating the denials and repeating the allegations contained in their first defense,” on the ground that denials and new matter could not be joined together, and to strike out the rest of the matter contained in said second defense as sham.

      Held, that while the defendants’ attempt to repeat the denials contained in their first defense was error, they had the right to incorporate the affirmative allegations of the first defense in the second one either by repeating them or by such reference as should make them a part of the affirmative defense; that the motion was, therefore, too broad.
    . Appeal by tlie plaintiff, Joseph H. White, from an order of the-Supreme Court, made at the New York Special Term on the 30th day of April, 1895, and entered in the office of the clerk of the county of New York, denying the plaintiff’s motion to compel the defendants to make more definite and certain an allegation contained in the answer to the amended complaint, and also to strike out certain matter contained in said answer.

      Jacob Fromme, for the appellant.

      Francis G. Kimball, for the respondents.
   Per Curiam:

The order appealed from denied plaintiff’s motion to make certain, allegations of the answer more definite and certain, by stating the character of the license which defendants held from the mayor to maintain a place of amusement at Twenty-third street. The complaint alleged a contract with the plaintiff’s assignor, Marie Lloyd, by which she agreed to take part in certain performances to be given by the defendants for a period of. nine weeks, and that she was induced to make such contract by the representations of the defend-, ants that they had a -variety theatre on Twenty-third street, near Sixth avenue, in the city of New York, where they were authorized to conduct a theatrical business. But that the defendants did not have, at the time of the maldng of the contract, or "dining the period provided for its continuance, a theatrical license allowing them to conduct a theatre of any kind at such place. The answer alleges possession of a place on Twenty-third street by the defendants, where public performances of such character as that contemplated in the contract could lawfully be given; and that they held a license from the mayor to maintain such place for such public performances. The answer, therefore, definitely and certainly put in issue the allegations of the complaint referred to, and more than that the plaintiff is not entitled to have on a motion of this character.

What he seeks to obtain is the evidence upon which the defendants rely to support their denials of plaintiff’s allegations, and their affirmative allegations that they held a license from the mayor authorizing them to give such performances as the contract contemplated.

That evidence the Special Term properly decided they were not entitled to have, under the guise of making the answer more definite and certain.

The defendants opened their second defense with the phrase.: il Reiterating the denials and repeating the allegations contained in their first defense.” As an affirmative defense, not including a counterclaim, necessarily admits and avoids the cause of action set out in the complaint, a denial, general or specific, cannot be included in and form a part of such defense.

A denial may be pleaded in the same answer as a separate defense, but not as a plea of new matter. (State of South Dakota v. McChesney, 87 Hun, 293.)

But while the defendants’ attempt to repeat the denials was error, they had the right to incorporate the affirmative allegations of the first defense in the second one, by either repeating them or by such reference as should make them a part of the affirmative defense. The motion was, therefore, too broad, and the moving party was not entitled to have his motion prevail to the extent asked. The denial of his motion, therefore, does not call for reversal.

The order should be affirmed, with ten dollars costs and printing disbursements.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.

Order affirmed, with ten dollars costs and disbursements.


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    James Shanks, Respondent, v. The Magnolia Metal Company, Appellant.

      Attachment — allegation in the alternative in regard to the incorporation of a foreign corporation — insufficient.

    The affidavit upon which an attachment was granted against a corporation alleged that the plaintiff had “a cause of action against the above-named defendant which is or holds itself out to be a foreign corporation,” etc.

      Held, that there was no sufficient allegation of the fact that the defendant was a corporation to sustain the attachment; that the allegation in the alternative was not sufficient to satisfy the requirements of sections 685 and 636 of the Code of Civil Procedure authorizing the issuing of an attachment in certain cases where the defendant is a foreign corporation.
    Appeal by the defendant, The Magnolia Metal Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of July, 1895, denying its motion to vacate an attachment granted in the action.
    The affidavit upon which the attachment in this action was granted was as follows :
    “James Shanks, being duly sworn, deposes and says, I am the plaintiff ; I have a cause of action against the above-named defendant which is, or holds itself out to be, a foreign corporation, which claim arises out of contract other than a contract to marry and the amount of which said claim is $7,600, over and above all counterclaim and all offsets known to me.”
    The allegation of the complaint in regard to the defendant’s incorporation was as follows :
    “ That at all the time herein stated defendant was an association or combination of persons, and held and holds itself out to be a foreign corporation created under the laws of "West Yirginia.”

      A. S. Bacon, for the appellant.

      L. A. Gould, for the respondent.
   Per Curiam:

"We are of opinion that there was no sufficient allegation of the fact that the defendant was a corporation. The allegation in the alternative is not sufficient to satisfy tlie requirements of the Code wliicli authorizes tlie issuing of an attachment in certain cases where the defendant is a foreign corporation. If the plaintiff is not willing to make his allegation in a definite form when lie proceeds against a foreign corporation, he cannot procure the benefits of the statute, given him as against foreign corporations.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Van Brunt, P. J., and Parker, J.

Order reversed, with ten dollars and disbursements, and motion granted, with ten dollars costs.


author: Per Curiam :

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    Henry W. Hardon, as Assignee, etc., of Thomas W. Robertson, for the Benefit of Creditors, Respondent, v. The Ongley Electric Company, Appellant.

      Demurrer — facts which appear in the pleading alone considered — two violations of-a contract do not constitute two causes of action.

    In an action brought to recover the amount due upon a promissory note, the complaint alleged that, by a written contract entered into between the parties to the note on tlie day of its date, it was agreed “that in ease default should be made in tlie payment of tlie said principal sum above mentioned or in the payment of tlie interest thereon, or in case the said defendant should at any time before tlie day of payment therein provided for, to wit, November 4,1894, permit or suffer any attachment or other process against property to be issued against it * * * then the said principal sum above mentioned should become instantly flue and payable.”
    It further alleged that the interest on the note which became due May 1, 1898, November 1, 1898, and May 1, 1894, had not been paid, and that on March 21, 1893, an attachment was issued out of the Supreme Court of the State of New York, in an action brought against tlie defendant, under which the defendant's property had been seized, and then remained subject to the lien of tlie attachment.
    The defendant demurred to the complaint on the grounds: First, that there was another action pending between the same parties for the same cause; second, that the complaint did not state facts sufficient to constitute a cause of action; third, that causes of action had been improperly united in a single count, one cause of action claiming the principal of the note sued upon to be due because of the issuance of an attachment against the property of the defendant, and the second canse of action claiming the principal of the note to be due because of a default in the payment of interest.

      Hehl, the first ground of demurrer was not well tallen, as it did not appear on tlie face of the complaint that another action was pending between the same parties.
    In support of the second ground of demurrer it was urged that the covenants in respect to the non-payment of interest and the suffering of an attachment to be issued were contained in a chattel mortgage given as collateral security to the note, and that they simply gave the plaintiff the right to foreclose the mortgage but not to sue on the note.

      Held, that as it did not appear that such covenants were contained in a chattel mortgage, there being no. allusion to a chattel mortgage in the complaint, the facts upon which the argument was founded were not in the record;
    That the third ground of demurrer was not well taken as there was but a single cause of action stated in the complaint, which was on the note; that the fact that it had become due by reason of two defaults, non-payment of the interest and the suffering of an attachment to be issued, did not constitute two causes of action;
    That the interlocutory judgment overruling the defendant’s demurrer should be affirmed.
    Appeal by the defendant, The Ongley Electric Company, from an interlocutory judgment of the Supreme Court- in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of May, 1895, upon the decision of the court rendered at the New York Special Term overruling the defendant’s demurrer to the plaintiff's complaint.

      Rufus W. Peekham, Jr., for the appellant.

      Treadwell Cleveland, for the respondent.
   Per Curiam :

This action was begun October 8, 1894, to recover the amount of a promissory note, of which the following is a copy :

“ $22,783-=^-. Neav Yoric, JVovember 1st, 1892.
Two years after date we promise to pay to the order of Thomas "W. Robertson twenty-two thousand seven hundred and eiglity-three dollars, at No. 1 Broadway, New York City.
“ Yalue received. THE ONGLEY ELECTRIC CO.,
“ No. By Geo. B. ILopKINS,
with interest at 5% Vice-President. payable semi-annually.
“ Due Nov. 4th, 1894.”

It is alleged tliat by a written contract entered into between tlie parties to the note on the day of its date it was agreed “.that in case default should be made in the payment of the said principal sum above mentioned or in the payment of the interest thereon, or in case the said defendant should at any time before the day of payment therein provided for, to wit, November 4, 1894, permit or suffer any attachment or other process against property to be issued against it * * * then the said principal sum above mentioned should become instantly due and payable.”

It is further alleged that the interest on the note which became due May 1, 1893, November 1, 1893, and May 1,1894, has not been paid, and that on March 21, 1893, an attachment was issued out of the Supreme Court of this State in an action brought by John F. "Wiechers against the defendant, under which the defendant’s property has been seized and now remains subject to the lien of the attachment.

The defendant demurs on the following grounds :

I. That there is another action pending between the same parties for the same cause.
II. That the complaint does not state facts sufficient to constitute a cause of action.
III. That causes of action have been improperly united in a single count, one cause claiming the principal of the note sued upon to be due because of the issuance of an attachment against the property of the defendant, and the second cause of action claiming the principal of the note to be due because of a default in the payment of ’interest.

In respect to the first ground of demurrer it is only necessary to say that it does not appear on the face of the complaint that another action is pending between the parties for the same cause of action. The third ground of demurrer is not well taken. There is but a single cause of action stated in the complaint, which is on the note; and the fact that it has become due by reason of two defaults, the non-payment of interest and the suffering of an attachment, does not .constitute two causes of action. The principal of bonds and mortgages often becomes due by breach of covenants to pay interest and to insure, and it has never before, we think, been argued that an action to foreclose the mortgage or to recover on the bond, in which a breach of both covenants is set forth, improperly joins two independent canses of action.

The learned counsel for the demurrant, in support of the second ground of demurrer, urges that the covenants in respect to the nonpayment of interest and the suffering of an attachment are contained in a chattel mortgage given as collateral to the note, and that they simply give the plaintiff the right to foreclose the mortgage, but not to sue on the note. The answer to this is, that it does not appear that these covenants are contained in a chattel mortgage. There is no allusion to a chattel mortgage in the complaint, and the facts upon which the appellant founds his argument are not in the record.

The judgment should be affirmed, with costs, with leave to defendant to answer upon payment of costs.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

Judgment affirmed, with costs, with leave to defendant to answer upon payment of costs.


author: Pee Curiam:

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    Angus F. MacColl, Appellant, v. American Union Life Insurance Company of New York, Respondent.

      Motion to strike out matter as irrelevant or redundant — inconsistent defenses may he set up in an answer if properly pleaded.

    The complaint in an action, brought to recover money alleged to have been paid on account of a subscription to stock in a corporation, alleged that the plaintiff notified defendant of his refusal to take the stock, and that thereafter defendant parted with its entire stock to others, and thereby voluntarily abandoned plaintiff’s subscription and released him therefrom; that the defendant was capitalized at a certain sum which had been paid up in cash prior to its date of organization.
    The answer, after admitting the organization of the company, the subscription by the plaintiff to the stock and his refusal to take it, denied, except as so admitted, each and every allegation of the complaint, and, by way of further answer, alleged that the sum of money sought to be recovered by the plaintiff was not paid on account of the par value of the stock, but pursuant to an agreement W'hereby the plaintiff, with other promoters of the company, agreed to pay on the call of the treasurer of the company a sum equal to three per cent of his subscription to said capital stock, which was to be used as a promoters’ fund to meet the expenses of the organization of the company, and that the same was received and used for the purpose designated.

      Upon a motion made "by the plaintiff to strike out certain portions of the defend ant’s answer as irrelevant, redundant and inconsistent with the general denial therein contained,

      Meld, that the matter set up in the answer was neither irrelevant nor redundant, and that even though it might be construed as inconsistent, there was nothing-in the practice of the court which prevented a person from setting up inconsistent defenses, provided' they were properly pleaded, and that the answer could not properly be regarded as sham.
    Appeal by the plaintiff, Angus E. MacColl, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of March, 1895, denying the plaintiff’s motion to strike out certain parts of defendant’s answer as irrelevant, redundant and inconsistent with the general denial therein contained, and as containing matter-insufficient either as a defense or a statement of new matter, and also denying the plaintiff’s motion to strike out defendant’s answer as sham.

      Gideon T. Chappell, for the appellant,

      Wilson & Bennett, for the respondent.
   Pee Curiam:

The action is brought to recover the sum of $300 paid to defendant on account of an alleged stock subscription of $10,000. Among other things the complaint alleges that on May 3, 1891, plaintiff notified defendant of his refusal to take the stock, and that thereafter defendant parted with its entire stock to others, and thereby voluntarily abandoned plaintiff’s subscription and released him therefrom. It further alleged that the defendant was capitalized at $500,000, which was paid up in cash prior to the date of its organization.

The defendant, after admitting the organization of the company, the subscription by plaintiff to the stock and his refusal to take it, then denies, except as so admitted, each and every allegation of the complaint, and, by way of further answer, alleges that the $300 sought to be recovered was not paid on account of the par value of the stock, but pursuant to an agreement whereby plaintiff, with other-promoters of the company, agreed to pay on the call of the treasurer a sum equal to three per cent on the amount of his subscription to said capital stock, which was to be used as a promoters’ fund to .meet the expenses of tlie organization of the company, and that the same was received and used for the purposes designated.

We regard this motion, made upon these pleadings, as entirely unnecessary, and, therefore, properly denied by the Special Term. The matter set up in the answer is neither irrelevant nor redundant, and, even though it might be construed as inconsistent, there is nothing in our practice which prevents a person setting up inconsistent defenses provided they are properly pleaded. Nor do we think that the answer can be regarded as sham. The real issue between the parties, as to the terms under which the $300 was paid, seems to be as to whether it was on account of plaintiff’s subscription to the stock, or as a subscription to be used for the pui’pose of paying the expenses of organization in addition to the par value of the stock. While there is in the prospectus issued by the president of the defendant some warrant for the view taken by the plaintiff, this is fully offset by the agreements signed by the plaintiff, in one of which he agrees to pay three per cent of the amount of his subscription, to meet the expenses of organization, and by the other agrees to pay the par value of the stock. The question thus presented is not to be disposed of on a motion, nor can it be said that a defense thus fortified is sham.

As already said, we think the order below was right and should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

■Order.affirmed, with ten dollars costs and disbursements.


author: Per Curiam : George C. Holt, Referee:

text:
    James Talcott, Appellant, v. The Wabash Railroad Company, Respondent.

      Oommon em'rier — coupon ticket issued by it over its own and connecting roads — liability for loss of baggage on a connecting road.

    In the absence of proof of a special contract, if goods are delivered to a carrier to be sent to a point beyond tlie terminus of the carrier’s line, the carrier performs its duty if it transports tlie goods to the end of its line and delivers them in safety to the connecting carriers. The contract to carry the baggage of a traveler is a mere incident to the contract to carry the traveler.

      A common carrier can, in the case of a passenger, as well as in the case of goods, make a special contract to carry beyond its own line, hut when a railroad company, without making any special contract, issues coupon tickets entitling a ' passenger to a continuous ride over the line of the company issuing the ticket, and over connecting' lines of other railroads, the first carrier is only responsible for the carriage of the passenger upon its own line, and acts merely as an agent for each of the other lines in the sale of the coupon for each connecting line respectively.
    Appeal by tlie plaintiff, J ames Talcott, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of March, 1894, upon the report of a referee, dismissing the complaint.

      Theron G. Strong and Charles F. Mathewson, for the appellant.

      George F. Brownell, for the respondent.
   Per Curiam :

The judgment appealed from should be affirmed upon the opinion of the referee rendered upon the decision of the case.

Present — Van Brunt, P. J., Follett and Parker, JJ.

Judgment affirmed, with costs.

The opinion of the referee was as follows:

George C. Holt, Referee:

When tlie plaintiff rested, his counsel elected to suffer a nonsuit as to the third and fourth causes of action, and upon tlie defendant’s motion, I dismissed the first cause of action. This left the second cause of action, being the claim for the loss of personal baggage belonging to one Cullom, the plaintiff’s assignor, alone remaining in the case. Tlie substantial question raised by the defendant’s testimony is whether tlie defendant, the Wabash Railroad Company, is responsible for the injury to Oullom’s baggage which occurred on the Grand Trunk line. This depends upon the question whether tlie Wabash Company contracted to carry Cullom from Chicago to New York or simply contracted to carry him over its own line from Chicago to Detroit, and acted as agent for the Grand Trunk Company and the West Shore Company in respect to the contract which was made to carry him over those lines to New York. ,

When the case was before the General Term, each of the judges wrote an opinion (Talcott v. Wabash Railroad Co., 66 Hun, 456). As I understand these opinions, one judge held that the Wabash Company contracted to cany Cullom to New York; another, that it only contracted to carry him over its own line; and the third, that the form of the ticket was not proved, and, therefore, the question did not arise. Upon this trial the defendant lias, in my opinion, proved that the ticket which Cullom bought was in the same form as the ticket in evidence. The question, therefore, of the liability of the Wabash Company, under the contract proved upon this trial, does not appear to have been decided by the General Term.

The material facts upon this question are these:

On April 27, 1889, Cullom purchased at the city office of the Wabash Company in Chicago, for twenty-five dollars, a round trip coupon ticket from Chicago to New York and return. This ticket had printed upon it that it was good for one first-class passage to New York and return, and that it was subject to the following contract : “ In consideration of the reduced rate at which this ticket is sold, the bearer or holder of the same agrees to and with the several companies over whose lines this ticket entitles him to be carried, as follows, to wit: 1st, that in selling this ticket the Wabash, St. Louis and Pacific Railway Company acts as agent, and is not responsible beyond its own line,” together with other provisions.

The main ticket had annexed six coupons, one providing for a trip to Detroit over the Wabash road, another from Detroit to Suspension Bridge over the Grand Trunk road, another from Suspension Bridge to New York over the West Shore road, and the remaining three coupons being the corresponding return coupons. Cul-lom, some hours later in the day, went to the Dearborn street station in Chicago, presented the ticket to the baggagemaster and had him check four trunks to New York, .paying sixteen dollars for extra weight. These trunks contained, among other things, Cullom’s personal baggage. Cullom took the checks for these trunks and went aboard the train, leaving Chicago on the Wabash road at three o’clock, and the trunks, having the duplicate checks upon them, were put aboard the same train. Cullom occupied a sleeping car on the train, owned by the Wagner Sleeping Car Company, which was intended to go from Chicago to New York. None of the other cars of the train went beyond Detroit, the eastern terminus of the Wabash road. At Detroit Cullom’s tranks were transferred to a baggage ear owned by the Grand Trank Company, and the train, made up of Grand Trank cars, with the exception of the sleeping car in which Oullom was, was drawn by a Grand Trunk engine and manned by Grank Trunk employees. On the following morning, at a point on the Grand Trunk road, an accident occurred, the baggage car in which Cullom’s trunks were took fire and Cullom’s baggage was destroyed.

Upon these facts it seems to me clear that the Wabash Company was not responsible for the Joss of Cullom’s baggage caused by the accident and fire on the Grand Trank line, unless the Wabash Company contracted to carry Oullom from Chicago to New York.

In the case of the delivery of goods to a common carrier for shipment to a point beyond its own line, the courts of different countries have differed as to the liability of the carrier accepting the goods. The English rule has always been that the carrier who accepts the goods is responsible to the shipper for their safe delivery, and this rule seems to have been followed in Illinois and some of the other States. (Hutchinson on Carriers, § 148, and Illinois, cases cited in note.)

But the courts of New York and of many other States and the United States Supreme Court hold that, in the absence of proof of a special contract, if goods are delivered to a carrier to be sent to a point beyond the terminus of the carrier’s line, the carrier performs its duty if it transports the goods to the end of its line and delivers them in safety to the connecting carriers. (Condict v. Grand Trunk Ry. Co., 54 N. Y. 500; Rawson v. Holland, 59 id. 611; Jennings v. Grand Trunk Ry. Co., 127 id. 438; Myrick v. Railroad Compcmy, 107 U. S. 102.)

The plaintiff claims that this question is to be decided by the law of Illinois, because the contract was made there. If this were a case of a shipment of goods, it would appear to be the law of Illinois, both under the decisions of its courts and the statute which has been put in evidence, that the Wabash road would be responsible. But I do not think that the decisions or statutes fixing the liability of carriers for the transportation of merchandise, under a bill of lading or receipt, necessarily govern this case. The contract to carry the baggage of a traveler is a mere incident to the contract to carry the traveler. A common carrier can, in the case of a passenger, as well as in the case of goods, make a special contract to carry beyond its own line. (Quimby v. Vanderbilt, 17 N. Y. 306.) Bnt the general rule is that when a railroad company, without making any special contract, issues coupon tickets entitling a passenger to a continuous ride over the line of the company issuing the ticket, and over connecting lines of other railroads, the first carrier is only responsible for the carriage of the passenger upon its own line, and acts merely as agent for each of the other lines in the sale of the coupon for each connecting line respectively. (Milnor v. N. Y. & N. H. H. R. Co., 53 N. Y. 363; Kessler v. N. Y. C., etc., Co., 61 id. 538; Auerbach v. N. Y. C., etc., Co., 89 id. 281; Isaacson v. N. Y. C., etc., Co., 94 id. 283; Poole v. Delaware, etc., Co., 35 Hun, 29; Central Trust Co. v. Wabash, etc., Co., 31 Fed. Rep. 247; Hutchinson on Carriers, § 577, et seq.)

In my opinion there is nothing in the circumstances of this case to take it out of the general rule. Cullom was an experienced commercial traveler. He purchased the ticket some hours before he had his baggage checked and took the train. There was nothing to prevent his reading the ticket, and nothing to prevent the,general rule applying that its acceptance constituted a contract. The only facts tending to show that the Wabash Company contracted to carry Cullom to New York were that Cullom asked for a ticket to New York and return, and asked to have his baggage checked to New York, and paid the full amount due for the railroad ticket and for the extra weight of the baggage to New York. I do not think that these facts are sufficient to take the case out of the general rule. The accident occurred on the Grand Trunk road. The train was a Grand Trunk train, drawn by a Grand Trunk engine, manned by Grand Trunk employees. If the Wabash Company is responsible for the injury to Cullom’s baggage, caused by the accident on the Grand Trunk road, it would have been responsible if Cullom had been injured or killed in the accident. It seems to me that, in view of the above authorities, no such claim could be maintained.

My conclusion is that the defendant is entitled to judgment as to the second cause of action on the merits, with costs.


author: O’BrieN, J.:

text:
    Rachel Salzberg, Appellant, v. Joseph Mandelbaum, Respondent.

      Attachment — insufficiency of the affidavits.

    The affidavits upon which a warrant of attachment was granted, upon the ground that the defendant had fraudulently disposed of his property, after a statement of the plaintiff’s cause of action, recited in effect that the defendant had conveyed certain property to one Holtzberg, and while the conclusion was stated that such conveyance was fraudulently done there were no facts stated to support it. In addition, it was stated that the defendant at that time held the title to certain other premises, and that, with intent to defraud his creditors, he disposed of his equity in said premises by causing a pretended mortgage in favor of a third person to be recorded. The evidence to support the conclusion that such mortgage was fraudulent consisted of an affidavit which stated that two persons, alleged to be the real owners of the property, had admitted that such mortgage was fraudulent.

      Held, that such papers were insufficient to sustain the attachment.
    Appeal by the plaintiff, Rachel Salzberg, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county, of New York on the 1st day of August, 1895, vacating and setting aside a warrant of attachment.

      Adolph Cohen, for the appellant.

      Ira Leo Bamberger, for the respondent.
    Present — Van Brunt, P. J., and Parker, J.
   Order affirmed, with costs, on the opinion of the court at Special Term.

The opinion of the Special Term was as follows:

O’BrieN, J.:

This attachment was granted upon the ground that the defendant had fraudulently disposed of his property, and it is assailed upon this motion upon the ground that the papers are insufficient. After a statement of the plaintiff’s cause of action the affidavits recite in effect that the defendant conveyed the property No. 232 East Ninety-seventh street to one Joseph Holtzberg, and while we have the conclusion stated that this was fraudulently done there are ím facts to support it. In addition, it is stated that the defendant now holds the title to premises No. 97 Perry street, and that with intent to defraud his creditors he disposed of his equity in the premises by causing a pretended mortgage for $7,000, in favor of one Lieb Kowalsky, to be recorded. The evidence offered to support the conclusion that such mortgage was fraudulent consists of the affidavit of a person who states that Simon Rose and Abraham Maudelbaum, who, -it was alleged, were the real owners of the property, had admitted that such mortgage was fraudulent. Such an affidavit is insufficient, for either the defendant was the real as well as the ostensible owner of the Perry street property, in which case he could not be affected by admissions made by third parties who are not liis agents and who hold no such relations to him as to make their admissions binding, or, if we take the other view, that the persons who admitted that the mortgage was fraudulent were the real owners, and the defendant was only the ostensible owner, then their creditors and not the defendant’s were defrauded by such mortgage. There are other objections to the validity of this attachment, but the one suggested as to the insufficiency of the papers upon which the attachment was granted need only be referred to. The motion is accordingly granted, with ten dollars costs.


author: O’Brien, J.:

text:
    George Burk, as Administrator, etc., of Charles Burk, Deceased, Respondent, v. Edison General Electric Company, Appellant.

      Contributory negligence — tese of a dangerous passage where a safe one could be used.

    Where two means of communication between different parts of a cellar are furnished, one of which runs under an elevator and is obviously dangerous, and the other of which is safe, a person who, for his own convenience, chooses to take the dangerous passage, and is injured by reason thereof, is guilty of such, contributory negligence as precludes his recovering the damages resulting therefrom.
    Appeal by the defendant, the Edison General Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of February, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in the said clerk’s office on the 31st day of January, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Arthur P. Hodgkins, for the appellant.

      Frederick W. Holls, for the respondent.
   O’Brien, J.:

This action is brought to recover the statutory damages for the negligence of the defendant resulting in the death of plaintiff’s intestate. The deceased was at the time twenty-one years of age, and had been employed in the Ringler Brewery for nine months previous to his death. At the time of the accident the defendant company was putting an electric plant into the brewery, and in the course of its work it became necessary to hoist some heavy machinery on the elevator. This elevator runs in a shaft beginning in the cellar and extending to the top of the building. The floor of the cellar is thirty-five feet below the first floor, where the machinery was being rolled. The elevator did not cpiite fill the dimensions of the shaft, and when the floor of the elevator was on a level with the first floor of the building there was an interval of four and one-half inches between the edge of the car and the sill of the floor. The attention of the foreman of the defendant was called to this open space, and he was warned that the use of pieces of iron pipe as rollers, which were so small as to fall readily between the elevator and the floor, would be dangerous. Notwithstanding such warning, the defendant’s employees permitted one of the iron rollers which were being used to fall through the opening into the cellar, where it struck the deceased on the head, inflicting the injuries from which he died.

The elevator shaft was situated at a point where there is a division line between the east and west cellars, which division line is a heavy wall about two or three feet thick. The elevator was inclosed in walls which were approximately six inches thick. Both the east and west cellars are places for cold storage, being in fact parts of one cellar. It is possible to pass from the east to the west cellar by means of doorways in the elevator shaft, but these doors were kept constantly closed. Besides these doors, there were two openings between the east and west cellars, one being twenty-seven inches wide and about four feet bigb, and tbe other a full height doorway, situated about thirty-six feet from the side of the elevator shaft; neither of these openings has any door.

The deceased had been at work in the westerly cellar with another workman, washing barrels, and went from there through the regular doorway into the easterly cellar with his companion for the purpose of drinking a glass of beer. On their return they both went through the elevator shaft, and while so passing the deceased was struck by the iron roller as described. There was a rule in the brewery which forbade the employees using the elevator shaft as an ordinary passageway, but it appeared that it was frequently so used, and there-was no evidence that the deceased knew of the rule, although his. companion did.

The right of the plaintiff to recover upon these facts was submitted to the jury, and their verdict was favorable to the plaintiff, and from the judgment so entered and from the order denying a motion, for a new trial this appeal is taken.

The question of defendant’s negligence, we think, was one properly submitted to the jury, but the more difficult and serious question is, whether the facts would warrant the inference that the deceased was free from contributory negligence. The burden was upon the-plaintiff of establishing, not only the negligence of the defendant,, but that his intestate was free from any negligence which contributed to the accident. "Was the burden thus placed upon the plaintiff of showing the absence of contributory negligence sustained %

In disposing of this question we shall assume that the deceased was not aware of the rule forbidding the use of the passage through the elevator shaft, and that he is to be held responsible only for incurring the obvious dangers which every reasonable man should anticipate from its use. If one without need or cause puts himself in a position of apparent danger, and -while in that position suffers, an injury resulting in death, it cannot be maintained that he has not contributed to such injury. In view of the other means of communication furnished, it cannot be claimed that it was necessary for-the deceased to pass through the elevator shaft; and the only inference that the testimony affords, as to the reason'for his so using it, is-the inconvenience that would result either from usina: the smaller passage next to the elevator shaft or the larger passage, which was sufficiently ample though some thirty-six feet away. Undoubtedly, to save the steps and time required to return by the passage through which he had entered, the deceased deliberately selected the passageway through the elevator shaft. That such an adventure was obviously dangerous, we think, is evident, and it would be going beyond reasonable bounds to infer that a person who had reached the age of manhood, and who was familiar with the use of the elevator and shaft, could have approached it without a feeling that he was putting himself in a place of danger. It is to be remembered that this elevator was a mere platform used only for freight, and that articles heavy and light, large and small, were constantly being moved on and off at different floors; and when we recall the further fact of the space between the flooring of the building and the floor of the elevator, which would permit of articles falling, it would be -difficult to conceive how one familiar with the surroundings and use of such an elevator could regard the use of the elevator shaft as a passageway as other than dangerous.

Upon this proof we do not find that the burden placed upon plaintiff of showing that the deceased was free from contributory negligence was sustained, nor do we think that in any reasonable view to be taken of the evidence the inference can be justly drawn that the deceased was free from contributory negligence. Where as here two means of communication between the different portions of a cellar are furnished, one of which is obviously dangerous and the other safe, and a person, for his own convenience or to sa-ve the few steps required to use the means of safety, chooses to walk into danger, it cannot be said that the evidence which the law requires to entitle him to recover damages for injuries received while in such a position is thereby furnished.

Upon the ground, therefore, that the plaintiff failed to prove the absence of contributory negligence on the part of the deceased, the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

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

Judgment reversed, new trial ordered, costs to appellant to abide event.