author: Lewis, J.:

text:
    Ida Niggli, Appellant, v. Frank X. Foehry and Another, Respondents.

      Recovery of the value cf stone taken from, a landowner — evidence of an accoi'd and satisfaction not pleaded — counter proof, to proof not justified by the pleadings.

    Upon tlie trial of an action brought to recover the value of a quantity of building stone, alleged in the complaint to have been quarried and taken by the defendants from the plaintiffs premises without her consent, it is not competent for the defendants to prove an accord and satisfaction if no such defense was pleaded, but a judgment rendered in favor of the defendants will not be reversed by reason of the admission of evidence to establish such accord and satisfaction if no objection was made to the reception thereof.

      If, upon tlie trial of such action, the plaintiff introduces evidence tending to-prove that the removal of the stone by the defendants lessened the market value of her premises, although there is no allegation in the complaint to justify the litigation of such question, it is competent for the defendants to prove the value of the stone in the quarry before it was quarried, as bearing upon the question whether the market value of the premises had been lessened by the removal of the stone.
    Appeal by the plaintiff, Ida Niggli, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 2d day of June, 1894,. upon the verdict' of a jury rendered after a trial at the Monroe Circuit dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 2d day of June, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      Richcvrd E. White, for the appellant.

      P. Oha/rnberlaim,, for the respondents.
   Lewis, J.:

This action was brought to recover the value of a quantity of building stone, which it was alleged in the complaint the defendants had quarried and taken from the plaintiff’s premises in the city of Rochester without her consent. It was a disputed question of fact upon the trial whether the defendants had taken any stone from the plaintiff’s premises. The defendants owned lands adjoining the plaintiff’s lot, upon which there was a stone quarry which they were engaged in working. It was the claim of the plaintiff that in quarrying stone they trespassed upon and took stone from her premises. The plaintiff’s evidence left the question as'to the quantity of stone so taken, if any, in very much doubt. The evidence of the defendants tended to negative the plaintiff’s evidence as to their having taken stone from her premises. It was a question of fact for the jury and they found for the defendants.

It was not competent for the defendants to prove an accord and satisfaction, for no such defense was pleaded. There was evidence admitted tending to prove an accord and satisfaction. It does not appear from the case that there was any objection made to the admission of this evidence. The plaintiff introduced evidence tending to prove tliat the removal of the stone by the defendants lessened the market value of her premises. There was no allegation in the complaint which justified the litigation of that question, but the plaintiff having introduced such evidence it was competent for the defendants to prove the value of the stone in the quarry before it was quarried as bearing upon the question whether the market value of the premises had been lessened by the removal of the stone.

The error in the charge to the jury as to the measure of damages was fully corrected by the subsequent charge of the court at the request of the plaintiff’s counsel. The true rule of damages was finally presented to the jury so plainly that it is not at all likely that they were misled by the error in the charge.

The judgment and order appealed from should be affirmed.

Dwight, P. J., Haight and Headley, JJ., concurred.

Judgment and order appealed from affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Mary Lortz, as Administratrix, etc., of Frederick Lortz, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Ifegligenoe — crossing a railroad, track obscured by smoke.

    A person who .attempts to cross the tracks of a steam railway, although he observes smoke upon the tracks left by a locomotive which has just passed over the same which prevents him from observing an approaching train, is guilty of such contributory negligence as to preclude’a recovery by his administratrix of the damages resulting from his death, caused by his being run down by a train upon such crossing; it is the duty of a person in such a case to await the disappearance of the smoke before attempting to cross the tracks.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Genesee on the 6th day of January, 1894, upon the verdict of a jury rendered after a trial at the Genesee Circuit, and also from an order entered in said clerk’s office on the 21st day of July, 1894, denying tbe defendant’s motion for a new trial made upon the minutes.

      Albert H. Harris, for the appellant.

      William, O. Watson, for the respondent.
   Lewis, J.:

This action was brought by the plaintiff as administratrix to recover damages sustained by the next of kin by the death of her husband, Frederick Lortz. Lortz was killed while attempting to cross the defendant’s track in the village of Batavia, by coming in collision with one of defendant’s locomotives.

"We assume, in disposing of this appeal, that the jury was justified in finding that the defendant’s negligence caused the death of the deceased. "Whether the deceased was shown to be free from negligence contributing to his death is the serious question in the case. The defendant’s road runs in an easterly and westerly direction through the village of Batavia. It crosses Cedar street at grade. Cedar street forms the easterly boundary of the village. The defendant’s tracks cross it at right angles. There are five tracks at the crossing, four main tracks and a branch which is the northerly track. The tracks are numbered from the south, 1, 2, 3 and 4. No. 1 is for the east-bound passenger trains ; No. 2 for the westbound passenger trains; Nos. 3 and 4 are for freight trains. The tracks for a quarter of a mile east and for more than 100 rods west of this crossing are straight, and there is nothing to obstruct or interfere with the view of a foot traveler approaching the crossing from the south after he reaches a point ten feet from the south track, for the distance mentioned, in either direction. The decedent’s residence was upon Cedar street, a few rods north of the defendant’s road, and liis place of business was upon the same street south of the tracks. He was on his way home from his place of business at about six-thirty o’clock in the evening of April 16,1889. When he reached a point about nine or ten feet from track N o. 1, a passenger train ran across Cedar street to the west on track No. 2, The deceased stopped some eight or ten feet south of track No. 1 until this west-bound train had crossed the street, and there was evidence tending to show that he then turned his head to the east and to the west, as if to see if there was anything approaching the crossing, and he then started northerly and just as he stepped upon track No. 1 he was struck by a locomotive going easterly on said track at a speed of about forty miles an hour. The locomotive was drawing a train of cars and its headlight was burning. The deceased was instantly killed. It was a damp, cloudy night. "Witnesses described the clouds as being black. The west-bound locomotive mentioned, as it crossed Cedar street, threw but a dense volume of-smoke, which settled down upon the -railroad tracks 'just west of Cedar street. The smoke came close to the ground and was about as high as a man’s head. There was nothing in the evidence tending to show that there was anything but the smoke that prevented the deceased from seeing the train coming from the west from the point where he was standing. He was very familiar with the crossing and the surroundings, as he had lived just north of the crossing for many years, and was accustomed daily to pass over the defendant’s tracks upon Cedar street. Whether he in fact did look to the east or west before attempting to cross the tracks was a controverted question upon the trial. The deceased’s daughter, who was standing, at the time of the accident, in Cedar street, north of the railroad tracks, some ten or fifteen rods from her father, testified that she saw him standing just south of the tracks after the west-bound train had passed, and that he turned his head in both directions, before he stepped upon the track.

Several witnesses called by the defendant testified that they observed him and that he did not look either east or west before attempting to cross the tracks. There was some evidence which it is claimed by the plaintiff tended to show that the deceased’s eyesight was somewhat defective. This evidence was given by the plaintiff. She testified that her husband’s eyesight was defective ; that he could not see anybody very far off; that he could not see very good far off. When asked to give her reason for the opinion that he could not see at a distance she replied that he told her he could not. When asked to state any circumstance which led her to think that he could not see at a distance, she replied that they were once standing in the street and that she pointed out to him some houses that she could see, and that he could not see so far or as plainly as she could; and she testified that that was the only circumstance that she could remember from which she inferred that he could not see as far as she could. She testified that he caught cold in his eyes and that -water ran out of them. When asked to state how far distant the houses were that the deceased attempted to see, she replied that she did not know. She testified that the deceased was obliged to use eye-glasses to read. He was sixty-two years old at the time of his death. Whether his eyesight was proved to be more defective than is usual with persons of that age is doubtful. It is a matter of common knowledge that there is a difference in the ability of persons to see at a distance. It cannot be fairly claimed from the evidence that there was such a defect in the decedent’s eyesight as prevented him from seeing the smoke which was upon the track. There is nothing in the evidence which would justify the inference that the defect in the decedent’s eyesight had anything to do with the accident. If there was a cloud of smoke upon the track as described by plaintiff’s witnesses, and we assume there was, the deceased was able to see it had he looked in that direction. The train was some ten to fifteen minutes late.

We think that no other conclusion is deducible from the evidence than that the deceased was standing as described near the south track waiting for the west-bound train to pass Cedar street, and then either attempted to cross the track without looking in either direction, or if he looked to the west he saw the smoke upon the track, and without waiting for it to pass away, attempted to cross without being able to see because of the smoke whether the train was approaching. We do not think the jury w¡as justified,, under the evidence, in coming to any other conclusion, and such being the case, under the well-settled law of our State, he must be held to have been guilty of such contributory negligence as to prevent the plaintiff from recovering.

The facts in Heaney v. L. I. R. R. Co. (112 N. Y. 125) are very similar to the facts of this case. The deceased in that case attempted to cross the defendant’s railroad tracks in the city of Brooklyn about six o’clock in the morning. The weather was cloudy and drizzly. The train had just passed on the track nearest to the deceased as he attempted to cross, and the smoke from the engine settled down upon the road so as to temporarily obscure objects in tbe line of his vision. He was about sixty-six years of age and his hearing was somewhat impaired. He was killed by a passing train, the approach of which was obscured by smoke upon the track. It was held that it was the unquestioned duty of the deceased to wait for the disappearance of the smoke before he attempted to cross the track, and that his neglect to do so was negligence which prevented a recovery. It is stated in the opinion that “ If it was a body (referring to the smoke) perceivable, as contrasted with other objects, it was to a greater or lesser extent an obstruction or embarrassment to the vision, * * * thus, to say that the deceased may not have known that the smoke was an obstruction involves the proposition that he may not have been conscious of the appearance of a condition of the atmosphere distinguishable from its other or usual conditions, which is so unreasonable that habit disables us from understanding it.”

The doctrine of this case we do not understand to have been at all disturbed by the later case of (McNamara v. N. Y. C. & H. R. R. R. Co. (136 N. Y. 650). The decision in the latter case was placed upon the ground that the jury may have found from the evidence that it was a curve in the line of the road that prevented the deceased from seeing the approaching locomotive and not the presence of the smoke. The accident of Lortz occurred from fifteen to thirty minutes before sunset. If the smoke upon the track was as dense as the plaintiff’s evidence tends to show it to have been, it is very improbable that the deceased would have failed to see it had he looked in that direction.

The plaintiff failed to show that the deceased was free from negligence contributing to his death, and hence failed to make a case entitling her to recover.

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

Dwight, P. J., Haight and Bradley, JJ., concurred.

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


author: Lewis, J. :

text:
    George W. Crouch, Sr., Respondent, v. Trimby and Brewster Shoe Company, Appellant.

      Landlord and tenant — renewal of a lease for am, additional term, when presumed — not presumed from the occupancy of the leased and other premises, after the end oj the first term — a tenancy at will is thus established.

    Where a tenant occupies premises, under a lease which contains a provision giving to the tenant the privilege of renewal for an additional term on condition of his notifying the landlord to that effect on or before a specified date, after the expiration of the term, with the consent of the landlord, paying the rent as it accrues, he will be presumed to have waived the necessity for giving the notice and is bound for the additional term.
    In an action brought by a landlord to recover rent alleged to be due for certain leased premises, it was shown that the tenant notified the landlord, prior to the time fixed by the lease for the giving of such notice of its election to renew the same for the additional term, that the leased premises (a floor in the building) were insufficient for the purposes of its business, and thereafter took possession of an additional floor in such building with the consent of the landlord, the landlord making certain alterations therein and the tenant paying as rent, for both floors, twice the amount called for by the lease of the one floor.

      Held, that the tenant, by continuing the possession of both floors after the termination of the lease of the one floor, became a tenant at will, and that there was no election shown on his part to renew the lease of the one floor for the additional term.
    Appeal by the defendant, the Trimby and Brewster Shoe Company, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 18th day of July, 1894, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 9th day of July, 1894, denying the defendant’s motion for a new trial made upon the minutes.
    The defendant was a corporation engaged in manufacturing boots and shoes in the city of Rochester. The plaintiff leased to the defendant by written lease dated on the 1st day of April, 1890, the third floor of a building in'the city of Rochester for the term of two years from its date at the annual rent of $800, to be paid in equal monthly installments. The lease gave to the defendant the privilege of renewal thereof for an additional term of two years from March 31,1892, upon the same terms and conditions, by notifying the landlord to that effect on or before February 1, 1892. The defendant entered into possession of the demised premises, and its business having increased so that it needed more room, it entered into negotiations with the plaintiff at the close of the first year of the lease for the second floor of the" building. It was agreed between the parties that the plaintiff should make such changes in the rooms that they could be occupied together. The changes agreed upon were the connecting of the two rooms by a stairway and the changing of some partitions. It was agreed that the lease of the two floors should be for the term of three years from the 1st day of April, 1891, at an annual rental of $1,600, payable in m’onthly installments, and that a written lease should be prepared and executed by the parties. The plaintiff caused one to be prepared for both floors according to the terms of the agreement, and delivered the same to the defendant. It was, however, never executed, but the required changes were made and the defendant entered into occupation of the second floor, and continued to occupy and pay the rent for the two floors until the 1st day of March, 1893. It then vacated the premises.
    No notice was ever given by the defendant of its election to exercise the privilege of continuing the first lease for the additional two years. The reason assigned by the defendant for leaving the premises was that the plaintiff had leased the first floor of the building for a business which the defendant considered to be hazardous, and which it was claimed increased the danger of the building being destroyed by fire, and increased the cost of insurance.
    The plaintiff claimed to recover under the "first lease for the use of the third floor for the months of April, May, June and July in the year 1893 the sum of $266.68, and for a second cause of action a like amount for the use of the second floor of the building.
    At the close of the plaintiff’s evidence the court directed a non-suit as to the second cause of action and denied the defendant’s motion for a nonsuit as to the first cause of action. The defendant duly excepted, and at the close of the evidence renewed its motion for a direction of a verdict upon the ground that there was no evidence of a renewal of the first lease. The motion was denied and the defendant thereupon asked to go to the jury upon the question whether there was a surrender of the lease of the third floor upon the 1st of April, 1891, and whether the defendant ever elected to continue in occupation of the third floor after the expiration of the two years mentioned in the written lease, and whether there was an eviction of the defendant from the premises. The motions were denied and the defendant duly excepted, and the court thereupon directed a verdict for the plaintiff for the sum of $208, and the defendant duly excepted.

      J. B. M. Stephens, for the appellant.

      E E. Turk, for the respondent.
   Lewis, J. :

The only question presented by this appeal that merits consideration is whether the defendant' by continuing in the occupation of the third floor in the manner stated, after the expiration of the two years provided for in the written lease, must be held to have waived the necessity of giving the formal notice jirovided for by the terms of the WTitten lease, and thereby extended the term for two years after the 1st of April, 1892.

The general rule contended for by the plaintiff is that where a tenant occupies premises under a lease containing the provision as to extension of the term like the one in suit, and continues to occupy the premises after the expiration of the term with the consent of the landlord, paying the rent as it accrues, he is held to have waived the necessity for giving the notice and is bound for the additional time; but has that rule any application to this case ? Here the tenant, before the time fixed for giving the notice had arrived, determined that the one floor would not accommodate its business, and so informed the plaintiff. Had it not been able to obtain the additional room there is nothing in the case justifying the conclusion that it would have availed itself of the privilege of continuing the term of the first lease. The evidence negatives any such claim. The premises first leased had been altered by changing the partitions and connecting the two rooms by a stairway, and thereafter both floors were occupied under the new arrangement for the increased rental, which happens to be just twice the amount called for by the first lease.

We fail to find any evidence justifying the inference that the defendant ever elected to avail itself of the right to extend the term of tbe first lease, or that the landlord supposed it was to be extended. By continuing in the possession of both floors after the termination of the first lease the defendant became a tenant at will. ' The first lease, by its terms, expired with the month of March, in the year 1892, and unless it was extended by the parties thereto for the additional two years the defendant was not liable under its provisions. The question is not whether the conditions of the first lease were changed or modified by the verbal contract for the two rooms; that is not the claim of the defendant; but the question is, was the lease renewed for an additional term of two years ?

The court, we think, erred in directing a verdict for the plaintiff, and the judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Judgment and order of the County Court of Monroe county appealed from reversed and a new trial granted', costs to abide the event.


author: Dwight, P. J.:

text:
    The People of the State of New York ex rel. John C. Ryan, Appellant, v. George W. Aldridge, Mayor, etc., and Others, Respondents.

      Specific performance of a contract between a city and a surveyor — when the remedy of the aggrieved party is by an action for damages — writ of mandamus properly refused at Special Term.

      A writ of mandamus to a public officer, to compel the performance of a duty which rests in contract merely, is in the nature of an action in equity for the specific performance of such contract, and a municipality cannot be compelled to perform a contract made by it with a surveyor, for the survey of a portion of its territory.
    No person can be compelled, by any process of law, to prosecute any enterprise undertaken for purposes of his own beyond the point at which he sees fit to discontinue the undertaking.
    If a municipality has contracted with a party to do certain work, and afterwards refuses to have it done, the municipality does not thereby relieve itself from the obligation of the contract, but the remedy of the contractor is confined to his action for damages resulting from its breach.
    In such case the contract is not abrogated, but, in the nature of things, neither party can compel its specific performance by the other, and this rule applies as well to bodies corporate as to individuals, and even to tlie State, although no action for damages can be directly maintained against it.
    Where the common council of a city directs one of its committees to advertise for proposals for a survey of a portion of the territory of the city, and to let the work to the lowest competent surveyor bidding therefor, if the committee advertises, and a person sends in a proposal which is accepted, and the work is awarded to him by a resolution of such committee, and afterwards the common council votes to reconsider its previous action, and indefinitely postpones further action thereon, no further action on the part of the committee is enforcible by mandamus, and the remedy of the person whose proposal was accepted, if any exists, is by an action for damages for breach of the contract actually made and not by mandamus to compel the execution of a contract which the city, by its common council, has decided not to enter into.
    Under such circumstances the discretion of the Special Term of the Supreme Court is properly exercised in the denial of a motion for a mandamus.
    Appeal by tbe relator, John. O. Ryan, from an order of tbe . Supreme Court, made at tbe Monroe Special Term and entered in the office of tbe clerk of tbe county of Monroe on tbe 15th day of May, 1891, denying tbe relator’s application for a writ of mandamus.

      M. T. Bly, for tbe appellant.

      A. J. Roclenbeclc, for tbe respondents.
   Dwight, P. J.:

Tbe common council of tbe city of Rochester, by resolution, directed its map and survey committee to advertise for proposals for a survey of a portion of tbe territory of the city, and to let tbe work to tbe lowest competent surveyor bidding therefor, etc., and directed tbe mayor to execute a contract for tbe work when requested thereto by tbe committee. Tbe committee advertised, tbe relator sent in a proposal which was accepted, and tbe work was awarded to him by resolution of tbe committee. Shortly after-wards the common council voted to reconsider its previous action, and indefinitely postponed further action thereon. Thereafter demand was made, in behalf of tbe relator, upon tbe committee, to request tbe mayor, and upon the mayor, to execute tbe contract, both of which were refused, and tbe relator brought this action, joining the mayor and tbe members of tbe committee as defendants therein.

It is very clear, we think, that tbe action cannot be maintained. The writ of mandamus to a public officer to compel tbe performance ■of a duty which rests in contract merely is in the nature of an action in equity for a specific performance of such contract; and specific performance cannot be compelled of a contract of the nature of that here in question. No person can he compelled, by any process of law, to prosecute any enterprise undertaken for purposes of his own beyond the point at which he sees fit to discontinue the undertaking; and if he has contracted with another person to do the work for him, and afterwards refuses to have it done, the contractee does not relieve himself from the obligation of the contract, but the remedy of the contractor is confined to his action of damages for its breach. The contract is not abrogated, but, in the nature of things, neither party can compel its specific performance by the other.

The rule applies as well to bodies corporate and politic as to individuals, and even to the State, although against it no action for damages can be directly maintained. Such was the decision in the case of Lord v. Thomas (64 N. Y. 107), in which the principle was fully recognized which must control in this proceeding. In that case the court, by Andrews, J., says: The State cannot be compelled to proceed with the erection of a public building, or the prosecution of a public work at the instance of a contractor with whom the State has entered into a contract for the erection of the building or the performance of the work. The State stands in this respect in the same position as an individual, and may, at any time, abandon an enterprise which it has undertaken and refuse to allow the contractor to proceed. * * * That a person who has employed another to perform labor may refuse to allow the other party to proceed, and that the -latter cannot thereafter insist upon specifically performing: the contract, was decided in Clark v. Marsigla (1 Denio, 317).”

"We think that the principles thus stated are applicable to the case in hand, notwithstanding that the duty here sought to be enforced by mandamus is the execution and not the performance of the contract for the survey. Nevertheless, that duty itself exists, if at all, only by virtue of the contract made by the committee with the relator, when the former advertised for and accepted the proposals made by the latter, since the authority of the committee to proceed further under the original resolution of the common council has been, in effect, revoked by the subsequent action .of that body.

We have, then, the action of the committee, in awarding the contract to the relator, binding upon the city, because taken under the direction of its common council, but no further action on the part of the committee enforcible by mandamus, because that direction has been revoked. The remedy of the relator, therefore, if any exists, is, as in the cases cited, by action for damages for breach of the contract actually made, and not to compel the execution of a further contract which the city, by its common council, has decided not to enter into.

We think the discretion of the court was properly exercised at Special Term in the denial of the motion for a mandamus, and that the order should be affirmed.

Lewis and Bradley, JJ., concurred; Haight, J., absent.

Order appealed from affirmed, with ten dollars costs and disbursements. *


text:
    Mechanics’ Savings Bank, Plaintiff, v. De Villo W. Selye and Others, Defendants. The Central Bank of Rochester, Respondent; Josephine L. Parker, Appellant.

      Surplus money proceedings —judgment inter alios.

    In proceedings instituted to obtain surplus moneys arising upon the foreclosure of a first mortgage upon certain lands, it was shown that, in an action brought against the person who executed’a second mortgage upon the property sold under the foreclosure and who claimed to own it, it was adjudged that the plaintiff therein was entitled to an undivided one-half interest in and to the mortgaged premises. This action was commenced nearly two years after the second mortgage had been recorded, but the second mortgagee was not made a party thereto.

      Meld, that such judgment would-not affect the right to such surplus moneys of the second mortgagee, who was not a party to such action, if the mortgagor was the apparent legal owner of the premises in question at the time the second mortgage thereon was given.
    Appeal by tlie defendant, Josephine L. Parker, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 20th day of July, 1894, adjudging that the Central Bank of Rochester was entitled to the surplus moneys arising upon the sale of the mortgaged premises described in the action, and directing the county treasurer of Monroe county to pay the same to the Central Bank of Rochester, after deducting the fees allowed him by law.

      Q. Yam, YoorMs, for the appellant'.

      H. MoGioire, for the respondent.
   Dwight, P. J.:

The Central Bank claimed the whole of the surplus moneys by virtue of a mortgage next subsequent to that which was foreclosed in the action. Mrs. Parker’s claim was based upon an alleged equitable title to an undivided half of the mortgaged premises. The title was evidenced by a judgment against Selye in an action by Mrs. Parker, to which the Central Bank was not made a party — although its mortgage had been duly recorded nearly two years before the action was commenced — by which, notwithstanding the apparent legal title in Selye to the whole of the mortgaged premises, it was adjudged that Mrs. .Parker was the owner of an undivided one-half of those premises as tenant in common with him. This proof was no doubt properly made as against Selye, who, as apparent owner of the equity of redemption, would himself have been entitled to the surplus money if no other claim had been established thereto ; but, of course, it was entirely unavailing as against the Central Bank. As to the bank, which was not a party to the action in which it was recovered, the judgment was inter alios, and of no effect whatever. The principle is elementary, and as such is stated by Mr. Greenleaf in these words: It is also a most obvious principle of justice that no man ought to be bound by proceedings to which he was a stranger.” (1 Greenleaf’s Ev. § 522.) This case is an apt illustration of the facility with which, if such were not the rule, parties mutually interested to defeat the rights of a third person, might accomplish that object by means of a collusive action to which the third person was not made a party.

No other evidence was made of any title or interest in Mrs. Parker upon which to base her claim for the surplus moneys, and the bank having established its claim as against the mortgagor, the report of the referee was properly in its favor.

Other questions were litigated on the hearing, including the question of the effect of the Recording Act on the relative equities of the two claimants to the surplus money, but we do not think it necessary to consider that or any other question in view of the failure of proof to establish any title in Mrs. Parker as against the other party to that litigation.

The order appealed from should be affirmed.

Lewis, Bradley and TIaight, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: Dwight, P. J. :

text:
    In the Matter of the Petition of James C. Wing and Others, Respondents, to Compel the Payment of a Judgment by Edwin A. Doty, as Committee of William H. Campbell, a Lunatic, Appellant.

      Distribution of a lunatic’s estate — when the issuance of an execution does not create a lien on the lunatic’s personal property — exclusive jurisdiction of the Swpi'eme or of the County Court — an objection to jurisdiction first taken on appeal.

    Tlie provision of section 2321 of the Code of Civil Procedure, to the effect that the court must provide for the payment of the debts o\£ a lunatic out of the proceeds c.f his property, covers all his debts so far as his property will go, and necessitates a pro rata distribution in case his property is not sufficient to pay his debts in full, the case of a general or a specific lien being the only exception to this rule.
    The provision of section 2719 of the Code of .Civil Procedure, which gives preference to judgments in the order of their docketing in the distribution of the estates of deceased persons, affords no rule for any other case than that specified therein, and cannot be applied by analogy to estates of lunatics.
    If the person recovering a judgment against a lunatic fails to issue an execution thereon until after the personal property of the lunatic has come into the hands of his committee, no lien is acquired upon the personal property of the lunatic by then issuing an execution under the judgment, and the judgment creditor is entitled to no preference in the distribution of the lunatic’s estate.
    Where the original proceedings for the appointment of a committee of a lunatic were taken in a County Court, and an inquisition was had therein, and a committee of the lunatic was appointed by that court, the jurisdiction of the County Court becomes, under the provisions of section 2320 of the Code of Civil Procedure, exclusive of the Supreme Court, and the effect is to exclude the Supreme Court from jurisdiction of any matter relating to the payment of the debts of the lunatic.
    An objection of want of jurisdiction in the Supreme Court to make an order directing the committee of a lunatic to pay a judgment, by reason of the appointment of the committee of the lunatic by the County Court, may be taken for the first time upon an appeal from the' order of the Supreme Court directing the payment of such judgment.
    Appeal by Edwin A. Doty, as committee of William H. Campbell, a lunatic, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 13th day of June, 1894, compelling the payment hy the appellant of the amount of the petitioners’ judgment against William H. Campbell.

      D. E. Brong, for the committee, appellant.

      E. G. Hart, for the petitioners, respondents.
   Dwight, P. J. :

The petitioners having failed to issue execution on their judgment until after the personal property had come into the hands of the committee, acquire no lien thereon, and, so far as we understand, are entitled to no preference in the distribution of that estate. The statutory prescription in this respect is that the court must provide for the payment of the debts of the lunatic out of the proceeds of his property. (Code Civ. Proe. § 2321.) This, of course, means all of his debts so far as-his property will go, and necessitates a joro rata distribution in case the property is not sufficient to pay the debts in full, the case of a general or specific lien being, as we conceive, the only exception to this rule. (Matter of Otis, 101 N. Y. 583.) The statute which gives preference to judgments in the order of their docketing, in the distribution of the estates of deceased persons (Code Civ. Proc. § 2119), affords no rule for any other case than that specified therein ; it cannot be applied by analogy to the case of the estates of lunatics.

But there is another objection to the order appealed from which we suppose is insuperable, viz., that of want of jurisdiction in the court which made it. The petition shows that the original proceeding for the appointment of a committee in this case was taken in the County Court of Niagara county, and inquisition was had therein, and the committee was appointed by the court last named. That court had jurisdiction concurrent with the Supreme Court to enter-* tain the proceeding. (Code Civ. Proe. § 340, subd. 4.) But, by the provision of section 2320 of the same statute, the two courts having jurisdiction of those matters concurrent with each other, the jurisdiction of the court first exercising it became exclusive of that of the other “ with respect to any matter within its jurisdiction for which provision is made ” in the title in which that section occurs; and it is in the next section of the same title that provision is made for the payment of the debts of the lunatic. (§ 2321.)

The effect of the provision of section 2320 {supra) —■ the County Court having first exercised the jurisdiction therein mentioned.- — • must, therefore, have been to exclude the Supreme Court from jurisdiction of any matter relating to the payment of the debts of the lunatic in this case; and that objection is one which may be taken for the first time on appeal.

On either of the grounds mentioned the order appealed from seems to have been erroneous and it must be reversed.

Lewis and Bradley, JJ., concurred; Haight, L, absent.

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


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    Henry H. Craig and Another, Respondents, v. Frank J. Butler, Appellant.

      Recovery of rent after the total destruction of the leased premises by fire — right to surrender possession under chapter 345 of 1860 • — • when rent becomes due.

    In an action brought to recover rent reserved by the terms of a lease, it was shown that the rent reserved was $1,850 a year, payable $200 on the delivery of the lease, $150 on the first days of May, June, July and August in each year, and the balance of the yearly rent on the first day of September in each year. The lessee paid $200 on receipt of the lease, took possession of the premises thereunder, and paid the several installments of $150 each on the first days of May, June, July and August. September first was Sunday, and at six o’clock in the morning of that day the property was wholly destroyed by fire. September second was Labor day, a legal holiday, and on September third the lessee gave the lessor notice that he surrendered possession of the premises pursuant to the provisions of chapter 845 of the Laws of 1860.
    In an action brought by the assignees of the lessor to recover the balance of the yearly rent which, by the terms of the lease, became due on the first of September,
    Held, that the purpose of chapter 845 of the Laws of 1860 was to relieve the tenant from payment of rent which accrued after the destruction of the leased building, not from the payment of rent which was due but unpaid at that time;
    That, under the provisions of such lease, the balance of the yearly rent became due September first, and was due at all times during that day, although the tenant had the whole day in which to pay his rent without liability to action or distress for rent;
    That the fact that September first fell on Sunday had no effect upon the question, for the reason that the occurrence of Sunday at that juncture only extended the time of the payment of the rent then due, and did not prevent its falling due at the time named in the contract, the only effect of the rule dies non being to postpone the enforcement of the contract to a day open to transactions of a secular nature;
    That the plaintiffs were entitled to stand upon the terms of the lease, and insist that the rent sued for had accrued before the destruction of the property by fire, and that chapter 845 of the Laws of 1860 did not relieve the defendant from its payment.
    Appeal by the defendant, Frank J. Butler, from a judgment of the County Court of Monroe county in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 9th day of May, 1894, upon the decision of the court rendered on an appeal from a judgment of the Municipal Court of Rochester in favor of the defendant, a new trial having been had in the appellate court.

      Thomas Rcdnes, for the appellant.

      Albert H. Harris, for the respondents.
   Dwight, P. J.:

The action was to recover rent reserved by a lease executed by plaintiffs’ assignor to the defendant of a summer hotel at Ontario Beach for the term of three years from May 1, 1889. The rent reserved was $1,850- a year, payable, $200 on the delivery of the lease, $150 on the first days of May, June, July and August in each year, and the balance of said yearly rent on the first day of September in each year. The defendant paid $200 on receipt of' his lease, took possession thereunder, and paid the several installments of $150 each on the 1st days of May, June, July and August, 1889. The 1st day of September, 1889, was Sunday, and at six o’clock in the morning of that day the property was wholly destroyed by fire. The next day (Monday, the second) was Labor day, a legal holiday. On the next day (Tuesday, the third) the defendant gave his lessor notice that he surrendered possession of the premises pursuant to the statute. The plaintiffs, as assignees of the lessor, bring this action to recover the balance of $1,050, which, by the terms of the lease, was to have been paid on the 1st day of September, 1889. The sole question in the case is whether the statute referred to in the defendant’s notice, above mentioned, applies to relieve him from that payment. The enactment is found in chapter 345 of the Laws of 1860 (Birdseye, 828, § 32), and is as follows: “ The lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed, or be so injured by the elements or any other cause as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof after such destruction or injury, unless otherwise expressly provided by written agreement or covenant, and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied.”

Of course the purpose of the statute is to relieve the tenant from payment of rent which accrues after the destruction of the building; not from the payment of rent which was due, but unpaid at that time. So that the question here is narrowed to the inquiry whether, under the terms of this lease, the rent sought to be recovered had, accrued when the fire occurred; not whether. it was collectible, nor even whether it was payable on the first day of September —. that day being Sunday — but whether it had accrued and was due when that day commenced, and, consequently, before the destruction of the building.

"We believe that question is to be answered in the affirmative. The lease provides that all the balance of the yearly rent shall be paid on the first day of September. It may, then, be paid at any time on that day, and a tender of the amount would be good at any hour after the day begins. It must, therefore, have been due at all times dui’ing the day. No doubt the tenant has the whole day on which his rent falls due in which to pay it, without liability to action or distress for rent. But,the law takes no account of fractions of days, and rent which is due on a day certain is due at any and every hour of that day. The question is not, when must it be paid in order to prevent default, but when may it be paid within the terms of the contract. The authorities cited by counsel for.the defendant fail to meet the case in hand, because they relate to the time when the right of action for rent accrues, rather than to the time when the rent itself accrues, and' the difference in time between the two is the whole length of the day. , For though the tenant has until the last hour of the day on which the rent is due in which to pay it, it is, nevertheless, due all day, and may be paid or effectually tendered at any hour.

So much has been said as if the first day of September in this case had been a legal day. We suppose that the fact that it fell on a Sunday had no effect upon the question here presented, for the reason that the occurrence of Sunday at the juncture mentioned only extended the time of the payment of the rent then due; it did not prevent its falling due at the time named in the contract. As was said by the court in Porter v. Pieree (120 N. Y. 221), “That day (Sunday), like any other, occupies time.” Contracts mature and rent falls due on Sunday as well as on any other day of the week; the only effect of the rule of dies non is to postpone the enforcement of the contract to a day which is open to transactions of a secular-nature.

We suppose it is not at all material to inquire why the whole balance of the year’s rent, reserved by the lease, was made to fall due on the first day of September; but the fact is sufficiently accounted for by evidence which is in the case and which shows in brief that the year of use and occupation practically ended at about that time. The building was a summer hotel at the lakeside; its use as such was substantially confined to the summer months. ■ During those months the profit, if any, was made, and if the tenant was ever able to pay his season’s rent it was at the close of that season. These facts are not referred to as suggesting equities arising outside the terms of the contract. The plaintiffs, we think, may stand upon the terms of the lease and insist that the rent shed for had accrued before the destruction of the property by fire, and, consequently, that the statute does not relieve the defendant from its payment.

The judgment appealed from should be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Judgment of Monroe County Court appealed from affirmed.


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    Simon Schrank, Respondent, v. Rochester Railway Company, Appellant.

      Damages for personal injuries — evidence sufficient to justify a verdict

    Upon tlie trial of an action brought to recover damages for personal injuries evidence was given tending to show that the defendant, a street railway company, by the use of its snow plow in removing the snow from its tracks, had created an obstruction in the highway at the point where the injury occurred, which was more or less dangerous to passengers in the street, and that the injury in question was caused by such obstruction.

      Held, that as the question, whether the obstruction so created constituted an actionable nuisance, and one the creation of which might have been avoided by the exercise of reasonable care, was treated by the court and by the parties as a question of fact for the determination of the jury, there was sufficient evi,[_ dence to justify the verdict of the jury in favor of the plaintiff.
    Appeal by the defendant, the Rochester Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 17th day of May, 1891, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 17th day of May, 1891, denying the defendant’s motion for a new trial made upon the minutes.

      Theo. Bacon, for the appellant.

      P. Chamberlain, Jr., for the respondent.
   Dwight, P. J.:

The action was to recover damages for a bodily injury sustained by the plaintiff on or near the track of the defendant’s electric street railway in the city of Rochester. This injury the plaintiff ascribes to negligence on the part of the defendant in two particulars: First, in tlie operation of a snow plow on its track, by which that machine was brought into collision with the sleigh which the plaintiff was driving on the street; and, second, in the disposition of the snow removed from its tracks in such a manner as to obstruct the highway and render it unsafe for the passage of teams and vehicles.

The weight of the evidence was altogether against the theory of negligence on the part of the defendant in the first of the particulars mentioned.

The plaintiff was hauling coal with a single horse and a long box on bob sleds, to the Union brewery, on the east side of North Clinton street. He came out of Morrill street on to North Clinton street, about 100 feet south of the brewery, and turned to the north on the east side of the street, intending to cross the track a little further north. As he did so a snow plow of the defendant, propelled by an electric motor, came from the north. It was in plain sight of the plaintiff and needed no signal to give warning of its approach. It was under complete control of the operator, and was running slowly when it was met hy the plaintiff’s sleigh, as was shown by the fact that it was stopped while it and the sleigh were still alongside of eacli other. The plaintiff’s horse was frightened by the appearance of the machine and became somewhat unmanageable. There was a hank of snow on the side of the street with a side sloping towards the track, most of which had been thrown up by the snow plow on previous occasions, and which had become solid and icy on the slope. There was a horse with a cutter attached tied in front of the store on the corner, and in his attempt to pass the snow plow the plaintiff was obliged to drive outside the cutter. In doing so, his sleigh, which was loaded with coal, went sideways down the slope of the bank, and was thrown either against the projecting wing of the snow plow, or against the rail of the track with such force as to break the runner of the hind bob, and to throw the plaintiff from his seat. His leg was caught by some part of the sleigh and he was dragged and sustained the serious injury which is the subject of this action.

The evidence from which this narrative is drawn affords, we think, no support for the allegation of negligence in the running of the snow plow at the time of the accident, and with that remark we leave this branch of the case.

The other branch of the case was presented in a different aspect. There was, unquestionably, evidence which tended to, show that the defendant, by the use of its snow plow, in removing snow from its track from time to time previous to the date of the accident, had created an obstruction in the highway at the point where the accident occurred, which was more or less dangerous to passengers on the street, and that the casualty in question was caused by that obstruction. Indeed we think the evidence in support of the proposition stated may be said to have been substantially undisputed. The open question, if any, was whether the obstruction so created constituted an actionable nuisance — was it one the creation of which might, by the exercise of reasonable care, have been avoided — and this question was treated from first to last by court and by counsel as a question of fact for the jury. If there was involved in it any question of law for the court that question was not raised. There was no request to take the question from the jury, no exception to any instruction under which it was submitted to the jury, nor request for any other or further instruction on the subject. Undoubtedly there was evidence which must go to the tribunal, whichever it was, by which the question was to be decided, and, by common consent, that tribunal was the jury.

The motion for a new trial was made solely upon the ground that the verdict was without evidence or against the weight of evidence. But upon the question submitted by the court with the consent, as we have seen, of the defendant, it cannot, we think, be said that the evidence was insufficient to justify the verdict in favor of the plaintiff.

No other question is raised by this appeal, and the judgment must be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Judgment and order appealed from affirmed.


author: Haight, J.:

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    Mary M. Seeley, Respondent, v. Arthur M. Bisgrove, Appellant.

      Judgment — reversed by reason of communications had with the jury by the justice dun'ing its deliberations.

    After a trial before a justice of the peace anda jury, of an action brought to recover the value of a quantity of hay alleged to have been sold by the plaintiff to the defendant, the justice entered the jury room during the deliberation of the j urors upon their verdict, with the consent of both parties, but, without the knowledge or consent of either of the parties to the action, read to the jurors the original answer of the defendant.

      Held, that, as the answer contained allegations which might have prejudiced the plaintiff's case, the reading of such answer, without the knowledge or consent of the plaintiff, was erroneous and required the reversal of a judgment entered upon the verdict of the jury in favor of the defendant.
    Appeal by the defendant, Arthur NX. Bisgroye, from a judgment of the County Court of Cayuga county in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 19th day of February, 1894, upon the decision of the court reversing th.e judgment of a justice of the peace of the town of Owasco, Cayuga county.

      W. F. c& F. F. JIughitt, for the appellant.

      O. F. Milford, for the respondent.
   Haight, J.:

This action was brought to recover for a quantity of hay alleged to have been sold by the plaintiff to the defendant. The case was tried before a jury. The verdict was not satisfactory to the plaintiff, and she appealed.

It appears from the return of the justice that he entered the jury room on two separate occasions during the deliberation of the jurors upon their verdict. He states that this was done with the knowledge and consent of both the plaintiff and the defendant. In this respect his return is in conflict with the affidavits of the plaintiff and of her attorney, who both swear that they did not know or consent to his so visiting the jury. But, assuming that the return is correct that he entered with the knowledge and consent of the parties, he further returns that, on the occasion of his first visit to the jury room, lie asked the jury if they could agree, and they said they could not; that he then told them that he had a paper -which might help them to decide, and he then read to them the original answer of the defendant, which had not been read to them before, and he further returned that he read the answer to the jury without the knowledge or consent of either party, but says that he told the parties afterwards; that, on the occasion of his second visit to the jury, ‘ he found they had not agreed, and that he then told them that if it would help bring them to a decision, he would throw off some of his costs, as he thought that the difference was slight between them, etc. "We think that the reading of the defendant’s answer to the jury, without the knowledge or consent of the plaintiff, was error. It contained what is alleged to have been the statement of the plaintiff in reference to the character and quality of the hay, and the alleged statements of the defendant as to the quality and character of the hay and the condition in which it was found. It also contained alleged statements of the plaintiff to the effect that she told the defendant that he need not take the hay, etc., all of which might have ¡orejudiced the plaintiff’s case.

This question has recently been considered by this court in the case of The People v. Linzey (79 Hun, 23), in which the authorities were collected and discussed. See, also, Valentine v. Kelley (54 Hun, 78), and Gibbons v. Van Alstyne (29 N. Y. St. Repr. 461-463). For the reasons stated, the County Court properly reversed the judgment.

The judgment appealed from should, therefore, be affirmed.

Dwight, P. J., Lewis and Brad let, JJ., concurred.

Judgment of the County Court of Cayuga county appealed from affirmed.


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    Herbert Beattie, as Executor, etc., of William Beattie, Deceased, Respondent, v. Henry C. Beattie and Another, as Administrators, etc., of Jane Beattie, Deceased, Appellants.

      Money collected by an agent —presumed to home been paid to Ms principal — a pa/rty malcing a negative allegation imputing wrongdoing must prove it.

    If a person collects interest accruing upon a mortgage as the agent of another, it becomes his duty to account therefor and pay over to his principal the money so received by him, and if he fails in this and converts the money to his own use, he becomes criminally liable therefor. Such neglect of duty the law will not presume, but, instead thereof, will presume that the agent has performed his duty until it is made to appear otherwise.
    Where an allegation involves a charge of criminal neglect of duty, whether official or otherwise, or of fraud, or of the wrongful violation of actual, lawful possession of property, the party making the allegation must prove it; the presumption of law is always in favor of innocence.
    Appeal by the defendants, Henry C. Beattie and another, as administrators, etc., of Jane Beattie, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 4th day of June, 1894, upon the report of a referee.

      Frcmh Fice, for the appellants.

      J. II. Metcalf, for the respondent.
   Haight, J.:

It appears that in the month of January, 1888, the defendants’ intestate, Jane Beattie, entered into a contract with the plaintiff’s testator, William Beattie, wherein she agreed that if he would supply her with a home iu his family and would furnish her with board, care and attendance he should be well paid for the same by her; that pursuant to such agreement she went to reside in his family in the forepart of January, 1888, and thereafter made her home with him until her death on the 28th day of May, 1892; that during that time she was supplied with a comfortable room and with such board, care and attendance, including her washing, as was necessary and suitable for a person in her condition and circumstances ; that at the time she took up her residence with the plaintiff’s testator she was about eighty-eight years of age and somewhat infirm, but for a period of about eighteen months thereafter did not require any exceptional care or attendance other than that ordinarily required by a person of her advanced years; that thereafter she became feeble in mind and body, and during the last years of her life required and received from the plaintiff’s testator and his family care and attention of an exacting and disagreeable hind.

The referee has found the value of the services so rendered, and that there is still a balance due from her estate of $850.72. Some question has been made in reference to the value of the services found by the referee, and it is claimed that a greater sum has been allowed than should have been, but we are not disposed to interfere with these findings, for, although liberal, we think they are sustained by the evidence.

It further appears that the claim against the estate was presented by "William Beattie in his lifetime, but that he, shortly thereafter and before the trial of this action was completed, diedthat prior to the year 1888, and before Jane Beattie went to reside with him, he had, as her agent, collected for her use the interest accruing upon a mortgage owned by her during the years 1885, 1886 and 1887, amounting to $1,025.60. It is now claimed that this sum should be charged to him and credited upon his account. The circumstances disclosed under which these collections were made are somewhat meager. It appears that William Beattie was the nephew of Jane Beattie, and that they lived in the same town near each other; that Jaiie Beattie’s property chiefly consisted of a mortgage for $1,815 upon real estate in the same town; that she collected the interest accruing thereon herself until the spring of 1885, after which the interest was paid to William Beattie; that she was then eighty-five years of age, and, when payments were made to her, she said that William Beattie would make the indorsements for her; that this manner of making payments to her and the indorsing of the interest by William commenced as early as 1883, and continued up to the time that the interest was paid to William. She then appears to have delivered the mortgage to William, who made the collections for her thereafter. After she went to live with William in 1888 he still continued to make the collections of the interest paid upon the mortgage, but has charged himself therefor and accounted for such collections. As to what was done with the money collected by him prior to that time the case is silent; but the referee has found that the legal presumption, under the circumstances, is that he had performed his legal duty and paid ■ over and- accounted to her for the moneys so received by him, and that his estate is not chargeable therefor. We are inclined to the view that the conclusion of the referee should be sustained. It appears that Jane Beattie, up to the year 1885, chiefly transacted her own business; that she made her own collections, paid her taxes, etc., without assistance, except as she had William make the indorsements for her upon her mortgage; that her mind remained reasonably clear for eighteen months after she went to live with William. She, therefore, must have known when the payments became due upon the mortgage, the amount thereof and the sum that should be turned over to her by her agent. At the time she went to live with William she agreed to pay him well for the services that he should thereafter render, making no demand nor claim that he held in his possession any funds belonging to her.

We are aware that in the case of Andrews v. Moller (37 Hun, 480) it was held' that it was only necessary for the plaintiff to show that money belonging to him as receiver had passed into the possession of the defendants for his benefit in order to be entitled to recover, and that it was not necessary for him to prove that the defendants had failed to pay over the money, but in that case it did not appear that the defendants were the agents of the plaintiff. They were, in fact, commissioners licensed by the Secretary of State under section 4 of chapter 611 of the Laws of 1875, and the relation existing between them and the plaintiff, or the corporation he represented, was quite different from that existing between the parties in this action. If William collected the interest accruing upon the mortgage as the agent of Jane Beattie, it became his duty to account therefor and pay over to her the amount so received by him, and if he failed in this and converted the same to his own use he became criminally liable therefor. This the law will not presume, but instead thereof will presume that he has performed his duty until it is made to .appear otherwise. (Pardee v. Kanody, 100 N. Y. 121; People v. Pease, 27 id. 45-74.) Greenleaf in his work on Evidence (Yol. 1, § 80) says: “ Where the negative allegation involves a* charge of criminal neglect of duty, whether official or otherwise; or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it, for, in these cases, the presumption of law, which is always in favor of innocence and quiet possession, is in favor of the party charged.”

The question as to whether the judgment was properly entered without an order of the court was waived by the parties upon the argument of this appeal.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Judgment appealed from affirmed, with costs.


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    Emma M. Morgan, Respondent, v. Daniel W. Powers and Others, Appellants.

      Damages for personal ingu/ries— verdict not excessive — notice to quit to a tenant at will — not vitiated by a defect in the time specified therein — when waived by the giving of a second notice — when the tenancy is terminated.

    Upon, the trial of an action, brought to recover-damages resulting from personal injuries, the plaintiff’s evidence tended to show that she was very severely and seriously injured, and in consequence of her injuries was confined to her bed for a number of weeks, and that her injuries were likely to prove permanent.

      Held,, that a verdict of the jury, in favor of the plaintiff, for $2,500, would not beset aside as excessive.
    If a time be specified in a notice to surrender the possession of leased premises, served upon the tenant at will or by sufferance, which elapses within less than, a month from the time of service of the notice, it will not vitiate the notice. It is sufficient if the tenant has thirty days’ notice in writing of the intention of the landlord to terminate the tenancy.
    A tenant at will or by sufferance has the right to remain in possession of the leased premises until the tenancy is determined by a notice to surrender possession thereof. It can be terminated by the landlord’s giving a written notice of one month requiring the tenant to remove, and at the expiration of the month’s-notice the landlord has the right to re-enter or maintain ejectment or proceed in the manner prescribed by law to remove the occupants from the possession of the premises, and notwithstanding the defect in such a notice in requiring the removal of the tenant in less than thirty days, if the landlord allows a month to expire after the service of the notice, he is in a position to re-enter or obtain possession of his premises.

      The owner of a house on June twenty-fourth served a notice on the tenants at will or by sufferance thereof, directing them to leave the same on or before July third, and thereafter, on August seventh, served upon such tenants a second notice, requesting them to surrender and deliver up the possession of such house, and to remove therefrom on or before September ninth, and on August sixteenth such owner, during the temporary absence of such tenants from the house, by unlocking the front door by means of a key, took possession of the premises.

      Held, that the manner in which the landlord re-entered was not forcible;
    That by the giving of the second notice, however, the landlord waived the right to proceed under the first notice, and by forcibly removing'one of the'tenants from the premises after the landlord’s re-entry he became a trespasser, and was liable to the tenant for such damages as she sustained by reason of his assault.
    Appeal by tbe defendants, Daniel W. Powers and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 30th day of August, 1894, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 30th day of August, 1894, denying the defendants’ motion for a new trial made upon the minutes.

      Henry G. Pcvnforth, for the appellants.

      P. Chamberlain, Jr., for the respondent.
   Lewis, J.:

The defendant Daniel W. Powers, in the year 1885, erected upon land then owned by his wife on Prince street in the city of Rochester, a dwelling house, and his son, William C. Powers, by the consent of his father, commenced living in the house with his family, consisting of his wife and infant child. The plaintiff, who was the stepmother of Mrs. William C. Powers, became a member of their family and continued to live there until the 16th day of August, 1893. William C. Powers left his home and family in June, 1892, and so far as appears has never returned. The family seems to have occupied the house with the understanding that no rent was to be paid, and none was paid. The defendant Powers became the owner of the premises in the month of February, 1893, and on the 24th day of June thereafter he caused to be served upon the occupants of the house a written notice as follows :

“ To Mr. "William O. Powers, to Mrs. William O. Powers, to Mrs. Emma Morgan:
You are directed to leave the house No. 6 Prince street, in the city of Rochester, on or before Monday, the third day of July next.
“ Dated June 24, 1893.
“ Yours, etc.,
“ D. W. POWERS,
“ Owner of House.”

Mrs. William O. Powers, with her mother and child, continued in possession of the premises, paying no attention to the notice. Thereafter, and on the 7th day of August, 1893, the defendant Powers caused to be served upon the occupants of the house a second notice of which the following is a copy:

“ To Mr. William O. Powers, Mrs. William O. Powers, alias Del Powers, Mrs. Emma Morgan :
You will please take notice that you are requested to surrender and deliver up to me possession of the house and premises No. 6 Prince street, in the city of Rochester, New York, and to remove therefrom on or before the 9th day of September, 1893, at 12 o’clock noon.
“ Dated Rochester, N. Y., August 7, 1893.
“ D. W. POWERS.”

On the sixteenth day of August, while Mrs. Powers and the plaintiff were temporarily absent from the house, the defendant Charles Dare unlocked the front door of the house by means of a key which had been delivered to him by the defendant Powers, and by his direction he took possession of the house and locked the doors. The plaintiff and Mrs. William O. Powers returned to the house, and being refused admission they attempted to break in the doors, and the plaintiff finally entered the house through a window by means of a ladder. The defendants Dare, Ring and Heath, by direction of the defendant Powers, forcibly removed the plaintiff from the house, and in so doing injured her person to some extent, and thereupon she brought this action against the defendants and recovered a verdict of $2,500 damages, and from the judgment entered upon the verdict and from the order denying the defendants’ motion for a new trial this appeal was taken.

The trial court instructed the jury that the defendants had no right to take possession of the house at the time they did, and it further instructed them that the only question for their consideration was one of damages, and if this direction was correct the judgment, we think, should be affirmed. The appellants contend that the damages in any event are excessive. If the defendants were wrongdoers in entering the house and ejecting the jflaintiff therefrom the damages found by the jury cannot be said to be so excessive as to warrant us in setting the verdict aside. The evidence as to the extent of force used to eject the plaintiff and the injuries actually sustained by her was very conflicting. The plaintiff’s evidence tended to show that she was very severely and seriously injured; that, in consequence of her injuries, she was confined to her bed for a number of weeks, and that her injuries were likely to be permanent.

The defendants King, ITeath and Dare gave a very different account of the transaction. Their evidence tended to show that the plaintiff was removed from the house carefully, and that her injuries were slight and resulted solely from her struggles in resisting their attempts to remove her from the house. The jury believed the plaintiff’s account of the transaction.

The serious question is as to the effect of the second notice. Mrs. Powers was in possession of the house as a tenant at will or by sufferance of the defendant Powers. She had the right to remain there until her tenancy was- determined by a notice to surrender possession. It could be terminated by the landlord’s giving a written notice of one month requiring her to remove. At the expiration of the month’s notice the landlord had the right to re-enter or maintain ejectment, or proceed in the manner prescribed by law to remove the occupants from the possession of the house. (4 R. S. [8th ed.] 2457, § 9.)

The first notice was informal as it required the occupants to vacate the premises on the third day of J uly following the notice on the twenty-fourth of June; notwithstanding such defect had the defendant Powers allowed a month to expire after service of the notice he would have been in a position to re-enter or obtain possession of his premises. If a time be specified in a notice served upon a tenant-which elapses within less than a month from the time of service of the notice it will not vitiate the notice. It is sufficient if the tenant has thirty days’ notice in writing of the intention of the landlord to terminate the tenancy. (Burns v. Bryant, 31 N. Y. 453.) The landlord here gave the second notice on'the seventh of August, calling upon the tenant to surrender possession on the ninth of September following, and before the expiration of that notice he re-entered the house availing himself of the absence of the occupants. The manner in which he re-entered was- not forcible. (Bliss v. Johnson, 73 N. Y. 534.)

So we come to the question whether the tenancy was, in effect, terminated at the time of the re-entry, and the decision of that question depends upon the effect to be given to the second notice. It cannot admit of much doubt that the defendant Powers, at the time of giving the second notice, had concluded that the first one was defective. There does not seem to be any reason for serving the second notice, except upon the hypothesis that the first one was considered fatally defective, and that it could not be used as the basis of dispossessing the occupant. lie evidently afterwards concluded that he had a right to re-enter after the expiration of one month from the time of giving the first notice. Did the defendant waive his rights to proceed under the first notice by giving the subsequent one ? It has been held that giving a subsequent notice after the expiration of the first is in effect an admission that a tenancy still subsists, and is a waiver of the first notice. (Taylor Landl. & Ten. § 485 ; Brierly v. Palmer, 16 East, 53.)

Upon receiving the second notice the tenant unquestionably had the right to suppose that the landlord had waived the first notice, and that the tenancy would continue until the time fixed in the last notice, and act accordingly. There cannot be any doubt as to the intent of the landlord in giving the second notice, and it was properly construed by the court. It is a case where the landlord mistook his legal rights, and in forcibly removing the plaintiff from the house the defendants became trespassers, and were liable to her for such damage as she sustained by reason of their assault.

The judgment and order appealed from should be affirmed.

Haight and Bradley, JJ., concurred ; Dwight, P. J., absent.

Judgment and order appealed from affirmed.


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    The People of the State of New York ex rel. J. Tuttle Kenfield, Overseer of the Poor of the Town of Naples, Respondent, v. Frank E. Lyon, Appellant.

      Bastardy proceedings — testimony of the mother as to who was the father — it need not be corroborated as to the principal fact — features, etc., of the child — conduct of the mother with men — jurisdiction of the magistrates — presumption as to preliminary steps.

    The mother of a bastard child, after testifying in bastardy proceedings to the birth of the child, was asked and allowed under objection to answer the question who was its father.

      Reid, that although the question was perhaps liable to the objection that it called for a conclusion, yet the reception of such answer would not necessitate the reversal of a judgment rendered affirming an order of filiation theretofore made and issued, if it was without prejudice to the defendant by reason of being the unavoidable conclusion from the testimony, in detail, subsequently given by the same witness.
    The objection, that the testimony of the mother of a bastard child to the principal fact, given in bastardy proceedings, is not directly corroborated by other evidence, goes only to the question of the credit to be given to her testimony, there being no statute requiring corroboration of her testimony in order to warrant a conviction.
    In bastardy proceedings evidence given in rebuttal on the part of the relator as to the color of the hair and eyes of the child and its mother, if objected to, is inadmissible in evidence unless given in answer to testimony on the same subject first given upon the part of the defendant.
    The admission in evidence of testimony offered by the relator as to the manner and bearing of the mother of the bastard child in her casual intercourse with men is justified, if the defendant has previously introduced the testimony of witnesses to the effect that in such intercourse she was improperly forward and familiar.

      A motion made in the Court of Sessions to dismiss bastardy proceedings, on the ground that the magistrates are -without jurisdiction to hear and determine the case, is properly denied, if there be no specification in the motion of the respect in which jurisdiction is wanting, and if the magistrates have jurisdiction of the subject-matter and the defendant is before them in person and by counsel without objecting to their jurisdiction of his person.
    In the absence of any objection taken before the magistrates in bastardy proceedings, it will be presumed, for the purposes of an appeal to the Court of Sessions, that the preliminary proceedings necessary to give the magistrates jurisdiction of the person of the defendant had been taken.
    Appeal by tbe defendant, Frank E. Lyon, from a judgment of the Court of Sessions held in and for the county of Ontario, entered in the office of the clerk of the county of Ontario on the 2d day of May, 1894, rendered upon the decision of the court affirming an order df filiation made and issued by two justices of the peace of the town of Naples, Ontario county.

      Jno. Gillette, for the appellant.

      I. A. Beamans, for the respondent.
   Dwight, P. J.:

The defendant, a horseshoer by trade, took up the business of administering “ massage,” and, under the title of “ Professor Lyon,” traveled from place to place, in the region of Elmira and Canandaigua, holding himself out as a practitioner of the art which goes by that name. The mother of the bastard child, an unmarried woman of thirty-three years of age, who had been an invalid since she was twenty, submitted herself to his treatment, at first at her home in Naples and afterwards at a hotel in Canandaigua. At the latter place, as she testifies, the defendant, on three or four occasions, in the fall of 1892 and spring of 1893, having her alone with him in his bedroom in which he received his patients, with the door locked, in each case after administering the treatment of massage, solicited and was-permitted to have connection with her. She testifies that the child, to which she gave birth in the latter part of November, 1893, was the result of this connection. The order of filiation charged the defendant with the paternity of the child, and, after an appeal to and trial desovo by the Court of Sessions, that order was unanimously affirmed.

The finding of that court on the question of fact cannot be disturbed. The evidence, though contradictory, depended largely for its probative force upon the apparent character and truthfulness of the witnesses, and, so far as those elements of credibility can be judged of from the printed testimony, the court below was justified in bestowing its credence as it did.

Several exceptions were taken to rulings of the court in the admission of evidence, but none, we think, for which the judgment should be reversed. The testimony of the mother of the child was taken, as we infer, die bene esse, although it appears to have been offered in evidence as a deposition “taken by commission.” No order for the taking of the testimony was proved, nor is there in the record here any authentication of the deposition but the only objection which was made to its being read was that there was no evidence to form a basis for its introduction. This, we must suppose, related to the proof necessary to be made preliminary to the reading of evidence taken conditionally, namely, that the attendance of the witness could not be procured at the term. But this proof was fully made by the testimony of Dr. Oonley, who was the last witness to testify before the deposition was offered in evidence. That part of his evidence which related to the present condition of health of the mother of the child was objected to on behalf of the defendant as inadmissible and incompetent, but it was admitted, and it showed that the mother of the child was then confined to her room by severe illness, and that it would not have been possible for her to come to court. It would seem that this evidence, or the effect of it, must have escaped the attention of counsel for the defendant, but, however that may have been, no other objection was made to the deposition, and the counsel, himself, read in evidence that’portion of it which seems to have been taken on his cross-examination.

After testifying to the birth of the child, the deponent was asked who was its father, and the answer was received under objection. The question was, perhaps, liable to the objection that it called for a conclusion, but the answer was without prejudice to the defendant, because it was the unavoidable conclusion from the testimony, in detail, subsequently given by the same witness.

The objection that the testimony of this witness to the principal fact was not directly corroborated by other evidence goes only to the question of the credit to be given to her testimony. There is no statute requiring corroboration in order to conviction in this case as in that of rape or seduction (Penal Code, §§ 283, 286), and on the question of credit, we have already intimated that we stand by the finding of the Court of Sessions. The case of Burke v. Burpo (75 Hun, 568) furnishes no authority for discrediting the testimony of the principal witness in this case. In that case the circumstances were such as, in the opinion of the court, to forbid credit to the testimony of the mother of the .child. We can only say that, in our opinion, such are not the circumstances of this case. Every such case must stand on its own bottom.

Some • evidence in rebuttal was given by Dr. Conley and one other witness for the prosecution as to the color of the hair and eyes of the child and its mother; the evidence was objected to, and its reception would probably have been error but for the fact that the evidence was given in answer to testimony on the same subject, which was first given by the defendant and one of his witnesses.

The same must be said in respect to some evidence given by the prosecution, in rebuttal, as to the manner and bearing of the mother of the child in her casual intercourse with men. The admission of this evidence could not have been justified but for the fact that the defendant had previously introduced the testimony of several witnesses to the effect that in such intercourse she was improperly forward and familiar. The evidence ivas not material, except as it tended to discredit her testimony, and as such it was contradicted by that objected to by the defendant.

The motion in the Court of Sessions to dismiss the proceeding on the ground that the magistrates were without jurisdiction to hear and determine the case was properly denied. There was no specification, in the motion, of the respect in which jurisdiction was wanting, whereas it is apparent that the magistrates had jurisdiction of the subject-matter, and it appears from the record that the defendant was before them in person and by counsel without objecting to their jurisdiction of his person. In his brief for argument of this appeal, counsel specifies as the ground of his objection to the jurisdiction, that it does not appear by the record that the defendant, when arrested in another county than that in which the warrant was issued, was taken before a magistrate in the county in which he was arrested. (Code Crim. Proc. § 844.)

There seems not to be force in this objection. The record before us does not purport to contain the proceedings leading up to the trial before the magistrates, but only the proceedings on that trial. The record reads — after stating that the appeal to the Court of Sessions is from an order made by the two magistrates named — “ The following are the proceedings had before the magistrates from which such appeal was taken.”

It is true that the record does, in fact, contain what, on their face, purport to be some of tbe preliminary proceedings, but this was entirely supererogatory since the statute only required that the magistrates, from whose order the appeal is taken, shall transmit to the Court of Sessions the undertaking of the defendant for his appearance in that court with a certified copy of the order appealed from. (Code Grim. Proe. § 863.) We are of the opinion that in. the absence of any objection before the magistrates, it will be presumed, for the purposes of the appeal to the Court of Sessions, that the preliminary proceedings necessary to give the magistrates jurisdiction of the person of the defendant had been taken.

We find no exception taken on the trial which must not be disregarded under the provisions of the statute relating to appeals in criminal cases. (Code Grim. Proc. § 542.)

The judgment should be affirmed, with costs.

Lewis, Haight and Bradley, JJ., concurred.

Judgment of the Court of. Sessions of Ontario county appealed from affirmed, with costs.


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    William Skipworth and Another, Respondents, v. John Deyell, Appellant.

      Book of account — when inadmissible in evidence.

    Upon the trial of an action brought to recover upon an alleged oral agreement of the defendant to pay to the plaintiffs, for their saloon, fixtures and stock in trade, all that such saloon, etc., had cost them, it is erroneous to admit in evidence the book of account, kept by one of the plaintiffs, of expenditures in such saloon, where the book is shown not to have been a book of original entries, and was at best the copy of a copy, which was not made entirely by such plaintiff, but half of it by another person, who was not called to verify it, and where the original entries were neither shown to have been made in the ordinary course of business nor in accordance with the duty of the person making them, nor contemporaneously with the transactions to which they related.
    All of these elements are essential to the admissibility of a book in evidence, even if it has been shown to be a correct transcript of the original entries so made.
    The statement of one of the plaintiffs, that he knew the book to be correct of his personal knowledge, does not make it admissible in evidence.

      Semble, that such witness might perhaps be entitled to refer to the contents of the book as a memorandum, and testify seriatim from his own knowledge as to the correctness of each item, but by no possible means could the book be made evidence, of itself, of the items and amount of the plaintiffs’ claim.

      Appeal by the defendant, John Deyell, from a judgment of tlie Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 5th day of June, 1894, upon the verdict of a jury rendered after a trial at the Monroe Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 8th day of June, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      J. F. Fmney, for the appellant.

      P. Chamberlain, Jr., for the respondents.
   Dwight, P. J.:

There was an error in the admission of evidence in this case which must be fatal to the judgment. The action was on an alleged oral agreement of the defendant to pay to the plaintiffs for their saloon, fixtures and stock in trade all that such saloon, etc., had cost them. The conflict of evidence on the several questions whether any such agreement was ever made, whether the defendant took title to the property from the plaintiffs, and whether the plaintiffs had any title in the property to transfer, was very sharp, and left those questions very much in doubt. But when it came to the question of what the property had cost the plaintiffs, they relied upon what was called a book of account kept by the plaintiff Thomas Skipworth of expenditures in the place No. 174 State street.” This book seems to have contained eight or ten pages of items footing up something more than $1,200. It was presented for identification to the plaintiff Thomas Skipworth when on the witness stand, and after he had undertaken to give the items of the expenses in question from recollection. He testified about the book as follows: That book contains a statement of everything that we put into the place, except the last note paid Mr. Deyell of $25.” The book was then offered in evidence; counsel for the defendant objected to it as incompetent. The witness testified further: I kept the book; some of it is in my handwriting and some in my bartender’s; half of it is my bartender’s handwriting ; I was there at the time; it was copied on to another book first. and copied from the other book on to this.” The witness was then asked by the court: Are the items correct of your own personal knowledge ? ” To which he answered: “ Yes, sir, everything on the book; ” the book was thereupon received in evidence, and counsel for the defendant duly excepted to the ruling. The ruling was clearly erroneous. The book was shown not to have been a book of original entries; it was at best the copy of a copy. The copy was not even made by the witness, but half of it by another person, who was not called to verify it. But, what was worse still, the original entries were not shown to have been made in the ordinary course of business, nor in accordance with the duty of the person making them, nor was it shown that they were made contemporaneously with the transactions to which they related. All these elements were essential to the admissibility of the book, even i-f it had been shown to be a correct transcript of the original entries so made. (Mayor v. Second Ave. R. R. Co., 102 N. Y. 572; West v. Van Tuyl, 17 N. Y. St. Repr. 273.) In both of these cases, as in that of Manheimer v. Stern (15 N. Y. St. Repr. 618), also cited by counsel for the respondents, the book was received as original memoranda and not as a book of accounts.

None of the preliminary evidence necessary to entitle the book in this case to admission as a book of accounts was given; and, as we have seen, it was equally without evidence to sustain it as original memoranda. The statement of the plaintiff Thomas Skipwortli, that he knew the book to be correct of his personal knowledge, did not make it admissible as evidence. The witness might, perhaps, have made a case in which he would be entitled to refer to the list of items as a memorandum, and testify seriatim from his own knowledge to the conectness of each item, but by no possible means could the book have been made evidence, of itself, of the items and amount of the plaintiffs’ claim.

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

Lewis, Haight and Bradley, JJ., concurred.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.