text:
    WILSON B. SHELDON, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant.

      Use of a public highway by a telegraph company — it is subject to the public use •— liability for injuries caused by a wire used to support one of its poles..
    A telegraph company, which operated, lines of telegraph wire along a public highway, had placed at a point where there was an angle in the road, a telegraph pole, the tendency of Which was to fall away from the road. This pole was quite close to the fence, and the defendant, in order to prevent its falling, sank a stone close to the traveled part of the highway, and fastened to it a wire which was fastened at the other end to the telegraph pole above the ground. There were two apple trees on the same side of the road as the stone, which were then in leaf, and prevented the wire from being seen by persons using the highway; and there was a bank on the opposite side of the road which forced the travel close upon this sunken stone.
    The plaintiff, who was driving in the day-time a team of horses along the road, in . order to pass a wagon in front of him, turned to this side of the road ; in so doing the wire caught and was drawn down between the wagon-box and the wheel, the plaintiff was pulled from the wagon by the horses and sustained serious injuries.

      Held, that the right of the telegraph company to use the highway was subject to the right of the public use thereof, and that it could not lawfully use the road so as to obstruct or render it dangerous for the public travel.
    That as the wire between the stone and the pole was not easily seen under favora" hie circumstances, and was so close to the road that it was a dangerous snare to travelers, the jury were justified in finding the defendant guilty of negligence.
    Appeal by the defendant from. a judgment for the sum of $3,346.68 damages and costs in favor of the plaintiff, entered upon the verdict of a jury, rendered upon the trial of the action at the Dutchess County Circuit, in the office of the clerk of Dutchess county on October 8, 1888; and also from an order made upon the minutes of the justice presiding at the trial of the action, denying the defendant’s motion for a new trial, which was entered on October 19, 1888, in the said office.

      Herbert E. Dickson, for the appellant.

      William R. Woodin, for the respondent.
   Barnard, P. J. :

There is some conflict in the testimony upon minor points, but upon the whole it is clearly proven that the defendant operated lines of telegraph wire along the road in question. That it maintained a telegraph pole at a point where there was ■ an angle in the road, so that the tendency was that the pole would fall away from the road. This pole was quite close to the fence. To prevent the pole from falling away from an upright position, the defendant sank a stone close to the traveled part of the highway and fastened a wire to it and carried the wire to the telegraph pole above ground, and attached it to the pole; by means of this anchor and wire the pole was held firm. There were two apple trees on the same side of the road as the anchor stone, which, when in leaf, prevented the wire being seen by persons using the highway. There was a bank on the opposite side of the road, which forced the travel close to the sunken stone. The accident happened in August, 1886, and about six o’clock in the afternoon. The plaintiff was driving a team of horses along the road. A man with a wagon was ahead of him, and this man pulled his horses towards the bank to let plaintiff go by. The plaintiff turned out far enough to escape the wagon, and in doing this the wire caught the carriage of plaintiff between the box and the wheel and caused great injury to the plaintiff. He was pulled out of the wagon by the horses, which were freed from the carriage by the force of the collision with the wire. The question is a peculiar one in this, that both parties had a right to use the road. The plaintiff, because it was a public highway ; and the defendant, because of legislative permission to use the highway. The first question is which right is paramount. Highways are well established and defined in law. The right to use them as they have been accustomed to be used from time immemorial cannot be questioned, The right of the defendant is subject to the public user. The defendant may not use the road so as to obstruct or render dangerous the public travel. If this correctly states the rights of the parties, a case of injury by negligence of defendant is clearly made out. The wire between the stone and the pole was not easily seen under favorable circumstances. The wire was so close to the road that it was a dangerous snare to travelers, and besides this the road was so narrow by reason of the bank, and the traveler’s view was so obstructed by the trees that the jury was justified in finding the defendant guilty of negligence. The evidence fails even to make a debatable question in respect to the plaintiff’s negligence. He did not see the wire because he* could not for the trees and the invisible nature of a small wire between the stone and tiie pole. He turned out no further than was prudent to pass. The persons in each vehicle so testify; and the anchor was so close to the traveled part of the highway as to cause a collision under these circumstances. There are several exceptions to the refusal to charge specific requests. The general charge is faultless, and the requests were all either addressed to propositions which had no evidence to support them, or were addressed to the effect which certain findings upon particular facts would have upon the general question of negligence and contributory negligence, which was submitted to the jury upon the general evidence in the case. The refusals to charge on such propositions were not erroneous, where the charge as to the general question of negligence wa¡# plain and accurate. The damages found by the jury were moderate and fully justified by the evidence.

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

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs,


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    GEORGE E. NASH, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      A railroad accustomed to give the statutory signals at a pi'ivate crossing—liable for injuries occasioned by itsfailwe to do so.

    Upon the trial of an action, brought to recover damages for injuries alleged to have been caused by the negligence of the defendant, it appeared that the acci dent happened at a private road crossing about 1,000 feet south of a tunnel on the defendant's road; that the defendant had treated the crossing as a public highway, so far as to put up the usual crossing signal post, about 1,500 feet from the crossing, and to give the usual statutory signals as required at public highways.

      Held, that, although it was a private crossing, the defendant had, by its established use of the statutory signals at this point, imposed upon itself the same liability as if it were a highway crossing made by law; that as the plaintiff, having acted upon the faith of such usage of the defendant, had been injured by reason of its failure to give the signals required by the statute, he was entitled to recover.
    Appeal by the defendant from a judgment rendered at the Rockland County Circuit, upon the verdict of a jury, for the sum of $2,434.12, which was entered in the office of the clerk of Rockland county on June 15,1888; and also from an order denying the defendant’s motion for a new trial, made upon the minutes of the justice presiding at the trial, which was entered in the office of the clerk of Rockland county on May 14, 1888.

      Calvin Frost, for the appellant.

      Clarence R. Conger, for the respondent.
   Barnard, P. J.:

The evidence shows that the accident in question happened at a private road crossing, about a thousand feet south of the tunnel under the river range of hills in Rockland county, south of Haverstraw. The defendant had treated the crossing as a public highway, so far as to put up the usual signal posts about 1,500 feet from the crossing, and to give, the usual statute signals, as required for public highways. The usual signals were given ” is the testimony of one of the persons engaged in running the trains. Then, on proof to the contrary, and the jury having found that none were given on that occasion, negligence is thus made out, if the omission to give the signals caused the accident.

Although it was a private crossing, the defendant had, by establishing a custom for warning persons using the way, of the approach of the trains, made the liability the same in legal consideration as at highway crossings made by law. The plaintiff acted on the custom, and the defendant failed to observe it. Negligence was thus proven. As to the contributory negligence of, the plaintiff, there was evidence on both sides of the controversy. The proof tended to show that towards the south, from which the train was approaching, the view from the private road is entirely broken at places and obstructed at other parts of the way. Some of the obstructions were caused by the defendant. There is the ordinary inference that the plaintiff did not heedlessly expose his own life and the life of his wife, who was with him and was killed; and there is direct proof that the signals were not given, and he testifies that he was as .watchful as the surrounding country and the obstructions permitted. The jury have found that he acted prudently, and the proof supports the finding.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed with costs.


author: Pratt, J.:

text:
    THE DUTCHESS COUNTY MUTUAL INSURANCE COMPANY, Respondent, v. THE CITY OF POUGHKEEPSIE, Appellant.

      Domestic insurance compcmies, exempt from all taxation on personal moperrty, except as specified in chapter 679 of 1886.
    The plaintiff, a mutual insurance company, which was duly incorporated under the laws of the State of Hew York, and had an office and place of business at Poughkeepsie, brought this action to recover certain taxes paid to the treasurer of the defendant under protest, after a levy to collect the same had been made, and, also, to recover certain taxes paid by the plaintiff to the treasurer without a demand or levy.
    Section 4 of chapter 679 of 1886, imposing certain taxes for State purposes, reads as follows: " The lands and real estate of such insurance companies shall continue to he assessed and taxed where situated for State, city, town, county. village, school or other local purposes, but the personal property, franchise and business of all insurance companies incorporated under the laws of. this State, or any other State or country, and doing business in this State, and the shares of stock of said companies shall hereafter be exempt from all assessment or taxation except as in this act prescribed, provided that this section shall not affect the fire department tax of two per cent now required to be paid.”

      Held, that this act exempted from all assessment and taxation all personal property of the corporation, except as therein provided, and that the taxes imposed were, therefore, illegally imposed and ought not to have been collected.
    The defendant claimed that portions of the money so paid were for county taxes and were collected upon the warrant of the board of supervisors, and that, therefore, 'the city was not liable.

      Held, that the answer to this was, that the treasurer of the defendant received the money in his capacity, as an officer of the defendant and in pursuance of his duty as such officer.

      Everson v. City of Syracuse (100 N. Y., 577) distinguished.
    Appeal by the defendant from a judgment recovered on the verdict of a jury at the- Dutchess County Circuit, in June, 1888, which was entered in the office of the clerk of Dutchess county on June 18, 1888; and also from an order denying a motion, made on the minutes of the justice presiding at the trial, to set aside the verdict and for a new trial.
    The plaintiff is a mutual insurance company having its office and place of business at Poughkeepsie, N. Y. The sum of $106.25 was assessed against it as a tax on its personal property for city, county and State purposes, for the year 1887, and on February 2, 1887, and after a warrant had been issued to the city treasurer, the plaintiff paid the said tax to him under protest and objection. The said company was again assessed upon its personal property for city and county purposes, the next year (1888) in the amount of $123.92, and refusing to pay, its office furniture, etc., was levied upon by the city treasurer, whereupon the amount of said tax was paid; and this action was brought to recover the said taxes for the two years, as having been unlawfully assessed and imposed, and collected by compulsion.

      C. B. Herrick, for the appellant.

      Frank B. Lown, for the respondent.
   Pratt, J.:

Two questions are raised by this appeal. First. Whether the act of 1886 (chap. 679) referred to, exempts the plaintiff from the payment of any other taxes than the taxes for State purposes imposed by the act; and, second, if it does so exempt, can this suit be maintained to recover back moneys paid to the city for such taxes. The taxes so paid were assessed on the personal property of the plaintiff for the years 1887 and 1888, and paid under protest; the tax of 1888, after warrant had been issued and levy made. ° The section of the statute under which plaintiff claims exemption is as follows; Section 4. The lands and real estate of such insurance companies shall continue to be assessed and taxed where situated for State, city, town, county, village, school or other local purposes; but the personal property, franchise and business of all insurance companies incorporated under the laws of this State, or any other State or country, and doing business in this State, and the shares of stock of said companies shall hereafter be exempt from all assessment or taxation, except as in this act prescribed; provided, that this section shall not affect the fire department tax of two per cent now required to be paid.” This act seems to he as clear and explicit as possible that the personal property of, the corporations referred to shall be exempt from all assessment - and taxation, except as therein provided; the taxes were, therefore, illegally imposed and ought not to have 'been collected. The defendant claims that portions of the money so paid were for county taxes and collected upon the warrant of i¡he board of supervisors, and, therefore, the city is not liable. The answer to this is that the treasurer of the defendant received the money in his capacity as an officer of defendant and in pursuance of his duty as such officer. Prior to the payment of the taxes the defendant had paid the county tax to the county treasurer out of the general city fund, and the taxes when paid by plaintiff were covered into the city treasury to replace the moneys for county tax, and the balance for the other purposes for which the same were assessed. It cannot be said that any of the payments were voluntary. The first were by an arrangement with the city treasurer, paid under protest, and the last after levy and threatened sale of property.

The case of Everson v. City of Syracuse (100 N. Y., 577), is not an authority applicable here. That was an action of tort against the city for levy and sale made by a constable, and failed for the reason that the constable was not authorized by the city to commit the tortious acts complained of. This case is in the nature of an action directly against the city for money had and received by the defendant to plaintiffs use. The criticism upon the statute of 1886. indulged in by the defendant, may be just, but the remedy must be sought in the modification or repeal of the statute. We are unable to say it is unconstitutional.

The judgment should be affirmed, with costs.

Dykman, J., concurred.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    MELINDA HOUGHTALING, Appellant, v. BENJAMIN SHELLEY, Respondent.

      Obstruction of a highway by an adjoining ownei- — liability therefor.

    Upon a public highway, which ran through lands belonging on both sides to the defendant, there were heaps of stone on the side of the road which had been placed and left there by the defendant for a number of years, some of which were within a foot of the traveled track of the highway. There had also been placed in the roads sacks and barrels filled with apples by persons who were gathering apples from the defendant’s land.
    The plaintiff was riding over this road in a one-horse wagon with another person, who was driving. The horse became frightened, jumped sideways, and the wagon-wheel struck one of the stone heaps, tipping over sufficiently to displace the driver, who fell out carrying the reins with him. The horse having started to run the plaintiff, in attempting to escape by leaping from the wagon, broke her leg.
    In an action, brought to recover the damages resulting therefrom:

      Held, that by placing the stone heaps in the highway, and permitting them to remain there in a position likely to cause accident or injuries, the defendant rendered himself liable for the damages which were likely to result to individuals by reason of their presence upon the surface at that place.
    That the questions of fact involved in this action should have been submitted to the jury under proper instructions, and if the jury should find that the heap of stones was the proximate cause of the injury, the plaintiff would be entitled to recover.
    Appeal from a judgment rendered at the Dutchess County Circuit dismissing the plaintiffs complaint, with costs to the defendant, which was entered in the office of the cleric of Dutchess county on October 9, 1888,

      W. J. Thorn, for the appellant.

      Esselstyn & McCarty, for the respondent.
   Dykman, J.:

The plaintiff was riding over a public highway in Dutchess county, which ran through the land belonging to the defendant on both sides. There were heaps of stones on the side of the road, which had been placed there by the defendant a number of years before the accident of which the plaintiff complains in this action, and some of the stones were within a foot of the traveled track of the highway. There were also, at the same time, placed in the road, sacks filled with apples, which had been placed there by a person who was gathering apples from the defendant’s land; there were barrels there also. The plaintiff was riding in a one-horse wagon, with another person, who was driving, and the horse became frightened and jumped sideways, and the wagon-wheel struck one of the stone heaps and tipped over sufficiently to displace the driver, who then fell out and carried the reins with him. The horse, thus left without control, started to run, and while he was running at high speed the plaintiff attempted to escape by leaping from the wagon, and broke her leg. This action was brought to recover the damage she thus sustained, and, at the trial, the complaint was dismissed at the close of the plaintiff’s case, and she has appealed.

Public highways in the rural districts, like streets and avenues in cities and villages, are constructed for the use of the public; and whoever obstructs them or impairs their usefulness, or renders their use hazardous by placing any object upon the surface of the ground, becomes responsible for injuries to individuals resulting from their unsafety for their appropriate use. Such actions are not based upon negligence, but upon a wrongful act; and it is, therefore, unnecessary to prove either negligence of the defendant, or want of it in the plaintiff, to justify a recovery in the first instance. The following cases are authority for what has been said: Dygert v. Schenck (23 Wend., 446); Congreve v. Smith (18 N. Y., 79); Clifford v. Dam (81 id., 56); Jennings v. Van Schaick (108 id., 530). Placing the stone heaps in the highway, and permitting them to remain there in a position likely to cause accident or injuries, was a wrong which imposed liability upon the defendant for the damages which were likely to result to individuals by reason of tlieir presence upon the surface in that place,

It seems Very likely that the trial judge felt some difficulty about the cause of the accident; and while the first fright of the horse came from the apple sack, yet he was well in hand until the wheel of the wagon struck the stone heaps and overthrew the driver, and We think, therefore, the stone heap was the proximate cause of the injury to the plaintiff. When' several proximate causes contribute to an accident, and each is an efficient cause, without the operation of •which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause unless, without its operation, the-accident would not have happened.” (Ring v. City of Cohoes, 77 N. Y., 90.)

In any view, however, the question of fact involved in the action should have been submitted to the jury under proper instructions; and if the jury should find that the heap of stones was_the proximate cause of the injury, the plaintiff would be entitled to recover.

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

Barnard, P. J., and Pratt, J., concurred.

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


text:
    THE BROOKLYN CROSSTOWN RAILROAD COMPANY, Respondent, v. THE BROOKLYN CITY RAILROAD COMPANY, Appellant.

      Agreement between railroad companies conferring mutual rights to run cars on their trades—power to assign or lease such rights.

    In 1875, under a written agreement, the Bushwick JRailroad Company secured the right to run its cars over certain tracks of the plaintiff, the Brooklyn Crosstown Railroad Company, on Manhattan avenue, in consideration of certain privileges conferred on the latter company to run its cars on the track of the Bushwick Company.
    Both corporations operated their cars under this agreement until August, 1888, when the Bushwick Company executed a lease to the defendant, the Brooklyn City Railroad Company, for a long term, of all its franchises and property, including the right to operate cars under the agreement with the Brooklyn Crosstown Company, and under that lease the Brooklyn City Company operated cars on the track covered hy such agreement.
    Upon an appeal from a judgment restraining the defendant from running its cars on the track of the plaintiff:

      Held, that the agreement conferred a right upon each of the companies, which were parties thereto, to run its cars over the track of the other, and did no more.
    That it granted mutual privileges and made concessions of mutual conditions, without conveying or granting any interest, and there was vested no right or interest in either company which could he assigned or leased.
    Appeal from an order made at the Kings County Special Term on November 28, 1888, which was entered in the office of the cleric of the county of Kings on the same day, restraining the defendant, the Brooklyn City Railroad. Company, its officers, agents and servants, from running cars or operating a railroad over or upon the tracks of the above-named plaintiff, on Manhattan avenue, between Van Cott avenue and Greenpoint avenue.

      William C. Trull, for the appellant.

      William C. De Witt, for the respondent.
   Dykman, J.:

This is an appeal from an order restraining the defendant from running its cars on the track of the plaintiff on Manhattan avenue, between Van Cott avenue and Greenpoint avenue, in the city of Brooklyn. There has been no trial, and the injunction was based on the pleadings and affidavits ; but the important facts are undisputed, and they are these : The Bushwick Railroad Company, a corporation in the city of Brooklyn, and the plaintiff entered into a written agreement in September, 1875, by which the Bushwick Raihoad Company secured the right to run its cars over the track of the plaintiff on Manhattan avenue, then called Union avenue, between Greenpoint avenue and Van Cott avenue, in consideration of certain privileges conferred on the plaintiff, to run its cars on the track of the Bushwick Company, and to accomplish certain other results and purposes for the mutual benefit and advantage of both contracting parties. That contract was carried into execution, and both corporations operated their cars under it until August, 1888, when the Bushwick Company executed a lease to the defendant for a long term, of all its franchises and property, including the right to operate cars under the agreement with the plaintiff. Under that lease the defendant has operated cars on the track of the plaintiff, between Greenpoint avenue and Van'Cott avenue, and it is the object of this action to restrain the defendant from so using the track of the plaintiff’s road. The justification of the defendant for the invasion of the road-bed and track of the plaintiff is based upon the lease from the Bushwick Company and the agreement of the latter company with the plaintiff. The agreement confers a right upon each of the companies to run its cars over the track of the other, and it does no more ; it grants mutual privileges and makes concession of mutual conditions, without conveying or granting any interest; and it vested no right or interest in such company which could be assigned or leased. It was quite immaterial whether the instrument be called a lease or a license; its legal effect is the same, and its scope cannot be enlarged by denomination. Each party is granted the -right to run its cars over the track of the other, and in all other respects each party retains absolute control over its road for all purposes. The instrument bestows no right or interest which could become the subject of sale or assignment, or which could be carried to the defendant by a lease from the Bushwick Company. As we think, the injunction stands well supported on this ground, and as we concur with the views expressed in the opinion of the Special Term on this point, we deem it unnecessary to state our views more in detail.

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

Barnard, P. J., concurred; Pratt, J., not sitting.

Order affirmed, with costs and disbursement.


text:
    JOHN LANG, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Act of a brakeman in driving a trespasser from the train—liability of the railroad therefor—what act is not willful — measure of, and evidence as to damages.

    Upon the trial of an action, brought by the plaintiff to recover damages for injuries sustained by his son, a boy of eleven years, alleged to have been occasioned by the negligence of the defendant corporation, it was shown that the boy, without permission, got on a freight-car of the defendant at Hoboken to ride some six blocks to Weehawken.
    After the train had started a brakeman told the boy to get off, to which the boy replied, “Wait until you get to Weehawken.” The brakeman replied, “No,” and began to throw pieces of coal at the boy, who retreated to the next car behind him. The brakeman pursued him, and just as the boy got ready to jump off he rolled a large lump of coal on top of the car which struck the boy on the head. The boy at once fell from the car, went under the wheels and lost his foot and part of his leg. At the time of the accident the train was going about ten miles an hour.

      Held, that the defendant was liable for the injuries sustained by the plaintiff’s son.
    That the act of the brakeman was not a willful wrong but the result of a great mistake in judgment upon his part.
    That the brakeman was engaged in the master’s business and acted within the general scope of the authority conferred upon him, and simply did not maintain his self control nor use good judgment as to the time when it was safe to drive the trespasser from the train.
    That it was not necessary to show a specific order to the brakeman by the defendant to drive off boys who were “stealing rides.”
    The judge charged the jury that they could give damages for the care and nurture of the child so far as they were made more expensive by reason of the injury.

      Held, that though there was no direct proof that there would be greater expenses in consequence of the injury, there was proven an injury which of necessity made •'■the child more helpless; and from the very nature of the case there could be no positive evidence given further than this, and that the jury should estimate it as they would estimate the value of a life as to which there would exist no more specific basis of valuation.

      O'Mara v. The Hudson River Railroad Company (38 N. Y., 445) followed; Cuming v. Brooklyn City Railroad Company (109 id., 95) distinguished.
    That as the jury could take into consideration the estimated increased cost of caring for and bringing up a crippled child, a verdict of $1,500 was fully supported by the evidence.
    Appeal from a judgment in favor of the defendant, recovered on a trial at the Kings County Circuit, entered upon the verdict of a jury for the sum of $1,500, in the office of the clerk of Kings county, on March 16,1888; and also from an order denying a motion, made upon the minutes of the justice presiding at the trial, to set aside the verdict and for a new trial.

      B. F. Tracy, for the appellant.

      Samuel Keeler and C. D. Rust, for the respondent.
   Barnard, P. J.:

The plaintiff’s son, a boy of eleven years of age, got on a freight car of defendant at Hoboken, New Jersey. The object of the boy was, and it seems to have been a habit with boys in the neighborhood, to ride some six blocks to Weehawken. The plaintiff had no permission to ride, nor did the other boys. On this particular occasion a brakeman, after the train had started, told the boy to get off. The boy replied, “Wait until you get t.o Weehawken.” The brakeman replied, “No,” and began to throw pieces of coal at the boy. The boy retreated to the next car behind him, and the brakeman pursued. Just as the boy was getting ready to jump off, the brakeman rolled a large lump of coal on the top of the car, and the coal struck the boy on the head. The boy at once fell off from the car, went under the wheels, and lost his foot and part of his leg. At the time of the accident the train was going about ten miles an hour. Upon this statement of facts, as found by the jury, an action is made out for the injury. It was not a willful wrong, and it was a great mistake in judgment upon the part of the brakeman. The boy was very young and the train was going fast, and the means used by the brakeman seem to have for an instant rendered the lad insensible, and the result was occasioned thereby.

It is not necessary to show specific order to brakemen, by the master, to drive off boys who were “ stealing a ride.” The brake, man was engaged in the master’s business, and acting within the general scope of the authority. He simply did not maintain his self-control, nor use good judgment as to the time when it was safe to drive the trespasser from the train. (Rounds v. Del., Lack. and Western R. R., 64 N. Y., 129.) The brakeman was apparently engaged for the defendant, and clearly was not pursuing his own purpose, and so the jury has found. The action is, therefore, proven. The judge, charged the jury that they could give damages for the care and nurture of the child, so far as they were made more expensive by the injury. There was no proof that there would be greater expense in consequence of the injury, but there was proven an injury which, of necessity, made the child more helpless; and, from the very nature of the case, there could be no positive evidence given further than this fact. The jury must estimate it as they would estimate the value of a life, with no more specific basis. (O'Mara, Admr., v. The Hudson River R. R. Co., 38 N. Y., 445.) The case of Cuming v. Brooklyn City Railroad (109 N. Y., 95) is not adverse to this case. The point in that case was, whether the parent could recover for an estimated further surgical operation, and the court held that such an item pertained to the child’s action, and not to the action for loss of service, the case holds that a jury can estimate future loss of service from experience and such evidence as can be given. If the jury could take into consideration the estimated increased cost of caring for and bringing up a crippled child, the verdict is fully supported by the evidence. Fifteen hundred dollars is not an extravagant verdict for such a case, nor is it even exaggerated.

The judgment ought, therefore, to be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    HENRY B. DUKES, Respondent, v. THE EASTERN DISTILLING COMPANY, Appellant.

      The continuance and adoption of a nuisance — liability for the iiyjw'y resulting from it

    The defendant, a domestic corporation, carried on business on premises which were in part on one side of the tracks of the Long Island Railroad and in part on the other: a bridge, which was at the time of the accident fourteen feet eleven inches above the top of the rails, connecting the buildings on each side of the railroad. The cars used by the railroad were from ten feet to twelve and a half feet high. The railroad company had consented to the building of this -bridge; subsequently, however, and before the accident, the company had notified the defendant that the bridge was dangerous and that it must be removed; and this notice was repeated but was not obeyed by the defendant until the accident occurred.

      In September, 1885, just before passing under this bridge, a signal was given by an engineer on a train by which the plaintiff, a newly-engaged brakeman, was directed to apply the brakes to the train. While standing on top of the car in order to apply the brake, he was hit by the bridge which inflicted a severe injury.

      Held, that he was entitled to recover for the injuries so sustained.
    That it was not important whether or not the company owned the premises, as any person who continues and adopts a nuisance is responsible for an injury caused thereby.
    Appeal from a judgment recovered by the plaintiff upon the trial of an action at the Kings County Circuit on April 17,1888, before the court and a jury, which was entered in the office of the clerk of Bangs county on April 20, 1888, and from an order dated April 18, 1888, made upon the minutes of the justice presiding at the trial, denying the defendant’s motion for a new trial.
    The action was brought by the plaintiff, who was employed as a brakeman by the Long Island Railroad Company, to recover damages for injuries alleged to have been sustained by the wrongful act of the defendant in erecting a bridge over the tracks of the said railroad, to connect buildings standing on premises occupied by the defendant between which the tracks of the railroad were laid.

      C. Bainbridge Smith, for the appellant.

      Chas. J. Patterson, for the respondent.
   Barnard, P. J.:

The defendant is a domestic corporation carrying on the business of distilling spirits at Blissville in Queens county. The premises occupied by the firm are partly on one side the track of the Long Island railroad and partly on the other. There is a bridge connecting the buildings on each side of the railroad. This bridge, at the time of the accident, was fourteen feet eleven inches above the top of the rails. The cars were from ten to twelve and a half feet high-Some of these cars call for a brakeman to operate his brakes on top of the car. In September, 1885, just before passing under this bridge, a signal was given by a railroad engineer to apply brakes to the train. The plaintiff was a newly-engaged brakeman, and stood on top of the car to apply his brake when the bridge hit him and inflicted a severe injury. The bridge was built with the consent of the railroad company, and has been enlarged some with like consent. This consent was no defense to the construction of a dangerous nuisance. The railroad company subsequently, and before the accident, notified the defendant that the bridge was dangerous and that it must be removed. This notice was repeated, but was not heeded by the defendant until the accident happened. It is not important whether, or not the company owns the premises. Whoever continues and adopts a nuisance is responsible for an injury caused thereby as if he constructed it. (Wasmer v. Delaware, Lackawana and Western Railroad Company, 80 N. Y., 212.) The defendant maintained this structure until right after notice to remove it. No length of time without accident will excuse the defendant for an accident when it does happen. It was only a question of time when a signal to brake would be given just before reaching the bridge, and a brakeman, who was ignorant of the obstruction, should go on the car as he was in duty bound to do, and the accident would happen, of course. The brakeman was free from fault. The smoke from the engine hindered him from seeing the bridge.

The judgment ought, therefore, to be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    THOMAS RYAN, as Administrator of the Estate of JOHN S. RYAN, Deceased, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Duty of a railroad company to gire warning signals of b'idges—liability of, toan employee for an omission to do so.

    In an action, brought to recover damages for the death of the plaintiff’s intestate, it was proved upon the trial that the deceased was a brakeman on the defendant's railroad; that near Jamaica, in Queen’s county, four low bridges crossed the defendant’s tracks in close proximity, and that the defendant had placed warning signals, consisting of a set of cords or wires suspended from a horizontal bar, about 100 feet from the east side of the east bridge, and about the same distance from the west side of the west bridge, and none for the two intervening bridges.
    Early on the morning of the 4th of April, 1887, and while it was very dark, the deceased, while engaged in his employment as brakeman, passed through the western bridge, on a train going east, safely, but was killed by the second bridge.

      Held, that, assuming that the defendant was required by chapter 489 of 1884, to erect these warning signals at each bridge, the plaintiff was not entitled to recover, as it was shown that the deceased had passed these bridges for three months, and that it was fully understood by the employees of the defendant that these bridges had warning signals at each end of the four bridges, and that these signals were a warning for all the bridges.
    That the warning signals were apparent and the deceased assumed the risk of an omission of any others.

      De Forest v. Jewett (88 N. Y., 264); Gibson v. Erie Railroad (68 id., 449) followed.
    Appeal by the defendant from a judgment in favor of the plaintiff at the Suffolk County Circuit on May 7, 1888, - upon a verdict rendered by a jury, which judgment was entered in the office of the clerk of the county of Suffolk on May 11, 1888, and also from an order made upon the minutes of the justice presiding at the trial, denying a motion to set aside a verdict and for a new trial, which was entered in the said clerk’s office on May 15, 1888.
    The action was brought to recover damages for the death of the plaintiff’s intestate, his son, who received fatal injuries on the 4th day of April, 1887, while in the defendant’s employ.

      E. B. Hinsdale, for the appellant.

      George C. Hendrickson, respondent’s attorney.
   Barnard, P. J.:

The deceased was a brakeman on the Long Island Railroad. There are four low bridges near Jamaica in Queens county. Early on the morning of the 4th of April, 1887, and while it was very dark, the deceased, while engaged in his employment as brakeman on the top of his car, was killed. There are four low bridges in close proximity. The defendant had omitted warning signals about 100 feet from the east side of the east bridge, and about the same distance from the west side of the western bridge, and none for the two intervening-bridges. The train was going east when the accident occurred. The deceased passed through the western bridge safely, but was killed by the second bridge. Assuming the utmost extent of liability to be imposed by chapter 439, Laws of 1884, and that they were bound to erect these warning signals at each bridge, there is no right of action for the injury. It was a task assumed by the employee. He had passed these bridges for three months, and the case fully shows that it was understood by the employees that these bridges had warning signals at each end of the four bridges, and that these signals were a warning for all the bridges. Hannigan and Hays, the two brakemen called by the plaintiff, so testify. The warnings were apparent and the deceased must take the risk of an omission of the same. (De Forest v. Jewett, 88 N. Y., 264; Gibson v. Erie R. R. Co., 63 id., 449.) The complaint should have been dismissed.

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

Pratt, J., concurred.

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


author: Barnard, P. J.: Pratt, J.

text:
    LEVI A. FULLER, as Receiver of the Property, etc., of the Late Firm of C. BRENNAN & CO., Plaintiff, v. JOHN CLAFLIN and Others, Defendants.

      tíale of goods to arrive in a vessel — delivery thereof ■—right of a vendee over the right of a receiver subsequently appointed.

    On August 81, 1888, Thomas K. Foster, one of the members of the firm of 0. Brennan & Co., executed an agreement which read as follows:
    “New York, August 81, 1888.
    “For value received we hereby sell and transfer to II. B. Chitlin & Co. 150,000 cocoanuts and ten tons of ivory nuts, to arrive in the schooner Mary C. Decker from San Blas, U. S. C. “ C.- BRENNAN & CO.”
    Subsequently the super-cargo of the schooner was directed, by telegraph, to have the consignment made out to the defendants H. B. Olaflin & Co.

    On the day of the execution of the bill of sale the firm of C. Brennan & Co. were indebted to the defendants, and suits had been instituted for the recovery of said indebtedness, which were then pending. The defendants agreed to suspend further proceedings therein and to advance sufficient moneys to dis charge the boat on her arrival.
    The defendants, on the arrival of the goods, on October 16, 1888, obtained possession of the property described in the bill of sale, and refused to deliver the same to the plaintiff, who had been appointed a receiver of the firm of C. Brennan & Co., on September 15, 1888, in an action commenced on September fourteenth.

      Held, that the consideration for the bill of sale was ample and sufficient.

      That, although it appeared that the goods were not in the schooner at the date of the bill of sale, yet as they were in the hands of the agent of the firm of C. Brennan & Co., or on their way thither consigned to the defendant, in accordance with the telegraphic instructions to that effect, as perfect a delivery as the circumstances of the case allowed of was made.
    That, even if it was admitted that the sale was not complete in all essentials, still, as the defendants had given a valuable consideration for the instrument in question, they had priority of right over the receiver appointed subsequently, under the principle of law “ quiprior eat in tempore potior eat in jure.” (Pratt, J., dissenting.)
    Submission of a controversy upon an agreed statement of facts, pursuant to sections 1279-1281 of tlie Code of Civil Procedure.
    The defendants are and were copartners in business at the time hereinafter mentioned.
    Prior to September 14, 1888, Kate M. Shiells, Thomas K. Foster and Horace W. Campbell had been engaged for a year or more under the firm name of C. Brennan & Co., in the cocoanut business and in buying goods of this defendant and other parties, which they shipped to San Bias and other ports of Central America.
    In August, 1888, the firm of C. Brennan & Co. failed to meet its liabilities to the defendants, and a suit was begun against the firm by them claiming several thousands of dollars, and other suits were commenced after the appointment of the plaintiff as receiver, which resulted in judgments against C. Brennan & Co. by default. An agreement selling to the defendant’s 150,000 cocoanuts and ten tons of ivory nuts, to arrive in a schooner from San Bias, set forth in full in the opinion, was delivered on the day it bears date at the office of the attorney of the defendant firm, as a security for the indebtedness of C. Brennan & Co., to the defendants, and upon an agreement on the part of the defendants to suspend further proceedings in the pending actions to recover their claim and to advance sufficient moneys to discharge the boat on her arrival, all of which have been performed by the defendants,
    On. September 14, 1888, Kate M. Shiells brought a suit against Foster and Campbell to dissolve the partnership of C. Brennan & Co., and upon that day obtained and served an injunction upon defendant Foster. On September 15, 1888, the plaintiff' was appointed the receiver, and on September 19, 1888, his bond was duly proved and filed. After the arrival of the Mary C. Decker, the plaintiff, in November, 18S8, duly demanded the said cargo from the defendants, to whozn it had been cozzsigned and delivez'ed, and they refused to deliver it, claiming to hold it under the instruzzient dated August 31, 1888, above referred to.

      C. H. Hess, for the plaintiff.

      S. F. Kneeland, for the defendant.
   Barnard, P. J.:

It is fully settled that ozie member of a partnership may sell, hypothecate or otherwise dispose of the propez’ty, securities or effects of the firm. . Thomas K. Fostez-, one of the members of the firm of C. Brennan & Co., consequently had the power to make the sale to IT. B. Claflin & Co. The qzzestion in this ease is redzzced to the considez-ation of the fact whether or not the instrument, dated Azzgzzst 31, 1888, executed by Fostez-, was sufficient and adequate by its terms to transfer,to the vendees the title to property therein z-efez-z-ed to. Said agreeznent reads as follows:

“New York, August 31, 1888.
“ For value received we hereby sell azid transfer to IT. B. Claflizz & Co. 150,000 cocoanuts and ten tons of ivozy nuts, to aznive in the schoozzer Mazy C. Deckez, fz’ozzz San Blas, U. S. C.
“ C. BRENNAN & CO.”

Subsequently to the executiozz of the above contract, and in order to carry out the terms thereof, the super-cargo of the schooner was directed by telegraph to have the consignznent made ozzt to IT. B. Claflizz & Co. The cozzsideration for the foregoing contract is anzple azid sufficiezzt. C. Brezznan & Co. were at the date thereof justly indebted to the defezzdant IT. B. Claflin & Co., and suits had been instituted for the recovery of said indebtedness. It has been held in this State that any act which is for the benefit of one of the pazties to a contract, and operates to the injury of the other party or parties, is a good and effectual consideration to uphold a sale. (Hart v. Young, 1 Lans., 417; Britenstool v. Henry Michaels, 56 N. Y., 607.) It has been further held that the giving of a bill of sale of certain specific articles is a good consideration for the postponeznent of the enforcement of a claim. (Audas et al. v. Nelson, 64 Barb., 362.) There remains but one more question to be considered in reference to this case, viz., in reference to the delivery of the" subject-matter of the bill of sale. By a long line of decisions in this State, it is established that the delivery, which is one of the essential prerequisites to a valid sale, must be such as the article sought to be sold is by its nature susceptible of. (Hayden v. Demets, 53 N. Y., 426; Wilkes v. Ferris, 5 Johns., 335.) In the case under consideration, although the goods were not on the schooner at the date of the sale, still they were in the hands of agents or on their way thither; and the consignment of them to John Claflin & Co., in accordance with the telegraphic instructions to that effect, operated to make as perfect a delivery as the circumstances of the case in question allowed. Even admitting that the sale was not complete in all essentials, still John Claflin & Co., having given a valuable consideration for the instrument in question, have priority of right over the receiver appointed subsequently, under the principal of law set forth in the phrase “ qui pnor est in tempore pokior est in jmre.”

Judgment should be given for the defendant, with disbursements only according to the terms of the submission.

Dyicman, J., concurred.

Pratt, J.

(dissenting):

The phrase “ sold to arrive,” in mercantile contracts, does not import an executed sale. The sale is conditional; and in case the events take place upon which its execution depends, the right of the vendee, in case of non-delivery of the g-oods, is to recover damages therefor, lie cannot maintain replevin. The title is in the vendor until the sale is completed in the same manner as other sales. (Anderson v. Read, 106 N. Y., 333.) It follows, therefore, that the agreement of Brennan & Co. did not transfer to Claflin a present title to the goods. That remained in the vendors, and upon the appointment of the receiver, vested in him as the representative of the court, as did the title to the other assets of the estate. After that time the title of the goods could only be transferred by the receiver, or by order of the court. It also appears that on August thirtieth, when the contract was made, there were no goods of Brennan & Co. on the schooner M. C. Decker. There was, therefore, at that time, nothing which answered the description of the contract. Before the goods were placed on board they had vested in the receiver. They were not at any time before the receivership set apart or specified, or in any way appropriated, to the fulfillment of the contract, all which was necessary to be done before the title could pass. Not till those steps were completed could anyone tell which of the goods were to go to the vendee. The goods vested in the receiver before these things were done, and whatever was done by the agents of Brennan & Go. after that time had no validity.

It follows that the goods were the property of the receiver, who must have judgment upon the agreed statement of facts for $3,724.65, and interest from October 16, 1888, and his disbursements in the action.

Judgment for defendants upon submitted case, with disbursements, according to stipulation.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN M. POLLOCK, Appellant.

      Section 528 of the Penal Code, in changing embezzlement to larceny, did not change the proof required—criminal intent — a question for the jury.

    Section 528 of the Pedal Code, providing that “any person who, with intent to deprive or defraud the true owner of his property or of the use and benefit thereof, * * * appropriates to his own use * * * any money,” etc., is guilty of larceny, has changed the law as it formerly existed, in that it makes what was formerly embezzlement, and obtaining money or goods under false pretenses, larceny, but it has not changed the methods of proof required to establish these respective offenses.
    To constitute the offense of larceny, as defined in this section, there must be evidence of an intent to deprive or defraud the owner of his property; and the jury must find such criminal intent as a fact, upon the evidence, before a conviction can be had.
    Where it appeared upon the trial of a banker charged with grand larceny, that the party, whose money it was claimed had been appropriated by the hanker, had long been his customer and knew that the money was on deposit to his credit, and the question was presented as to wheiher tire relation, at the time of the failure of the defendant’s firm, was that of agent or debtor:

      Held, that it was competent, upon the question of intent, to show to the jury, and permit it to know all of the surroundings of the case.
    That the court erred in not submitting the question of intent to it.

      Appeal by the defendant from a judgment of conviction of the crime of grand larceny, rendered against him by the Court of Sessions held at the city of Newburgh on the 25th day of September, 1888.
    The defendant was a junior member of the firm of John K. Wiltsie & Son, which carried on, at Newburgh, the business of bankers, brokers, steamship insurance, real estate and exchange agents. In October, 1885, one James Hamilton, of Newburgh, gave to Arthur Y. Wiltsie, one of the partners, money to invest. The money was invested in a western bond and mortgage, and the papers given to Hamilton. Thereafter the money was collected from the mortgagor, by the firm, through its agent, and received by it on March 6, 1888, and placed as a deposit to the credit of James Hamilton, trustee, on the books of the bank, and the proceeds were passed into the general funds of the bank in accordance with its usual custom to do so. No charge was made for this service. It was the custom of the bank to pay out deposits on checks presented against the same for payment. No check was ever presented for this money, and on the twenty-eighth of March the bank failed. The money had, in the meantime, been paid out in the usual course of business of the firm. Upon the failure of the bank, the firm made an assignment to W. M. 0. Campbell for the benefit of the creditors. Hamilton had been a customer of the firm since 1862, and knew them to be bankers.
    Upon the trial of the action the court refused to charge as requested by the defandant “ that the jury must believe or find that there was a criminal or felonious intent on the part of the defendant or they cannot convict.” Saying,“ I decline to use the term criminal or felonious, there is no such word used in the statute.” In its charge the court compared the defendant’s case to Tweed’s ease, and stated that “ this statute was intended to reach just such cases as this.” A receipt was given by the firm to Hamilton, stating that the papers were received by the defendant’s bank for collection for his account, and that no charge was made for the collecting of them. The court charged that “ their duty was to collect this money as his agents, and to pay it over to him, and I charge you, as a matter of law, that no check was necessary to be drawn by him or offered to be drawn by him.” The court also charged that “ if they took this money and put it with their own money, or paid it out for their own debts, or mixed it with their own funds, it was an appropriation of the money to their own use, under the law as I understand the law.”

      McCroskery & Seeger and George H. Decker, for the appellant.

      Russel Headley, district attorney, for the people.
   Pratt, J.:

The statute (Penal Code, § 528), under which the defendant was indicted and convicted, provides that “ any person who, with intent to deprive or defraud the true owner of his property or of the use and benefit thereof, * * * or appropriates to his own use * * * any money,” etc., is guilty of larceny, changes the law as it formerly existed, in that it makes what was formerly embezzlement and obtaining of money or goods under false pretenses larceny, but it has not changed the methods of proof of these respective offenses. It simply classes these respective offenses as larceny and requires the same proof of criminal intent to make out a case as was required before the Penal Code was passed. The section, it will be observed, begins with the statement that “ a person who, with the intent to deprive or defraud the true owner of his property,” etc., does the acts specified, shall he guilty of larceny. To constitute guilt them must be evidence of intent to deprive or defraud the owner, and the jury must find such criminal intent as a fact upon the evidence before a conviction can be had. The jury liad a clear right to qjass directly upon the question of intent, and, by taking that question from the jury, we think the court committed an error.

It appears that the defendant was a banker, and the complainant had long been his customer, and knew that the money was on deposit for his credit, and it became important to determine whether the relation at the time of the failure of the defendant’s firm was that of agent or debtor; it was certainly competent upon the question of intent to show and permit the jury to know all the surrounding circumstances of the case. That part of the charge which referred to what was termed the Tweed statute also was calculated to prejudice the case for defendant. It is true that the evidence is sufficient to sustain the verdict if the jury disbelieved the defendant and believed the evidence of Hamilton, but the defendant was entitled to have the issue of an intent directly passed upon by the jury. It was not conclusive evidence, under all the circumstances, to show that defendant merely mixed the money with his own funds, but it was incumbent on the people to satisfy the jury that it was so mixed with the intent, or was at some time used with intent to deprive the owner thereof.

We also think the charge was erroneous upon the question relating to the good character of the defendant. Such evidence is competent to be submitted to a jury for the purpose of raising a doubt. It is not essential that a case must be doubtful before such evidence can be considered.

Upon the whole case, we think there were errors which worked prejudice to the defendant sufficient to warrant a reversal of the judgment and the ordering of a new trial.

Dykman, ,T., concurred.

Conviction and judgment reversed, and new trial granted.


author: Barnard, P. J.: Pratt, J.:

text:
    JAMES C. BELL, Respondent, v. SAMUEL S. HEPWORTH, Survivor of the Firm of S. S. HEPWORTH & Co., and Others, Appellants.

      Bight of a surviving partner to execute a mortgage upoii firm real estate — a subsequent lienor cannot compel the mortgagee to first foreclose a collateral mortgage given by the surviving pm'tnw on his own individual property.

    A surviving partner o£ a firm takes the legal title to the firm property, and may execute a mortgage to secure a portion of the purchase-price of property conveyed to him pursuant to a contract for its purchase entered into by the firm before the decease of his partner.
    In an action brought to foreclose a mortgage, given by a surviving partner for moneys borrowed for the purpose of continuing the business after his partner’s death, as he was authorized to do by the articles of copartnership, neither tile personal representatives of the deceased partner nor subsequent mortgagees are entitled to compel the plaintiff to first foreclose a mortgage, given to him upon the individual property of the surviving partner, as a collateral security for the payment of the loan, at the time that the mortgage being foreclosed, was executed.

      While the surviving partner’s individual property is liable for the partnership, debts, and the plaintiff could have resorted to the collateral securities first, his right to apply the partnership property to the payment of his debt could not be objected to by any subsequent lienor.
    Appeal from a judgment of foreclosure, recovered on a trial of this action at the Westchester Special Term ón the 2d day of June, 1888, before the court, without a jury, which was entered in the office of the clerk of the county of Westchester on the 27th day of August 1888.
    On .February 3, 1877, Joseph Colwell, since deceased, and Samuel S. Hepworth entered into a partnership to manufacture certain machinery for a period of five years, under the firm name of S. S. Hepworth & Co., which was, by supplemental agreement, dated October 13, 1881, extended for a further period of time. The supplemental agreement contained a provision to the effect that, in the event of the death of either of the partners, the business should be continued by the survivor until the expiration of five years from the first day of February next succeeding such death; the estate of the deceased partner to have the same share and interest in the profits and to bear the same share of losses of the business as would have been received and borne by the deceased partner had he lived. Colwell died in May, 1882, leaving a last will and testament. Shortly after the making of his will, the partners entered into a contract to purchase from the plaintiff the lands covered by the mortgage sought to be foreclosed herein. After the contract was executed, but before the title was passed, Mr. Colwell died. A deed was subsequently given by the plaintiff to the defendant Hepworth as the surviving partner, part of the purchase-price being paid out of the partnership funds, and a mortgage to secure the remainder of the purchase-price being executed by the said surviving partner to the plaintiff. About two years after Mr. Colwell’s death, the defendant Hepworth, as surviving partner, borrowed from the plaintiff $23,000 for the purpose of continuing the business, and gave him the mortgage to foreclose which this action is brought. Another mortgage was executed by him, as surviving partner, to the executors and trustees of Colwell, to secure an amount due to them, and also a fourth and fifth mortgage to the Garfield National Bank and to one Samuel A. Briggs, to secure amounts due to them. At the time of executing the mortgage to the plaintiff, which is sought to be foreclosed in this action, Hepwortli executed and delivered to him a mortgage on property owned by him individually, as a collateral security to secure the payment of the mortgage executed by him as surviving partner.

      William B. Ellison, for the appellant Frank W. Colwell, receiver, etc., and Skellen & Colwell, executors, etc.

      S. Jones, for the Garfield National Bank, appellant.

      William Allen Butler, for the plaintiff, respondent.

      Ralph E. Prime, for defendant respondent Quick, assignee, etc.
   Barnard, P. J.:

The mortgage is good by virtue of the power of the surviving partner to execute the same without regard to the consent of the deceased partner, given in his will, that the business shall be continued for five years after his death. The surviving partner took the legal title with the right to determine the manner of the management of the firm business, subject to the equitable rights of the survivor. (Williams v. Whedon, 109 N. Y., 333.)

Whatever may finally be adjudged to be in the power of a testator as to continuance of a partnership business after death, as between the debts existing at his death and those subsequently contracted in the business, in respect to the estate as it was at the decease of the partner, the mortgage, as between the executors of Colwell and the plaintiff, is good. Colwell authorized the continuance of the business. The land was purchased in the lifetime of Colwell, and the deed was taken after his death. The mortgage was, therefore, based upon the business of the partnership, and was given on partnership lands, and under a power expressly given in his will. The parties are, therefore, bound by it, it being given in good faith and for value which the partnership received and retained. The mortgage on the individual property of the surviving partner, given at the same time the mortgage described in the complaint was given, was a collateral security to the partnership loan. The decree which directed the sale of the partnership mortgage first was equitable. The surviving partner had rights to be considered. It is true that he is liable for the partnership debts as an individual, and that the plaintiff couM have first resorted to the collateral security, but the plaintiff seeks to apply first the partnership property to the payment of the debt, and this right cannot be objected to by any subsequent lienor.

The rights of these lienors must be determined in respect to the individual property of Hepworth, the surviving partner, after the agreement in respect to the partnership mortgage is carried out.

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

Pratt, J.:

The representatives of a deceased partner may require from the surviving partner an account of his doings as such survivor in cl osing the business. They may also compel payment by the survivor of such amount as shall be found- due to the estate of the deceased partner; and when it is made to appear that, by maladministration, the rights of the estate are imperilled, equity will find means for their protection. In some cases the courts have spoken of these rights as constituting a “ lien ” on the property of the firm. The strict propriety of that term may, perhaps, be doubted. If they can be said to constitute a “ lien ” it must be in a qualified sense, for the title to the assets vests in the survivor. He may sell the property and give a clear title. He may even make an assignment, with preferences. The appellants are, therefore, in error in claiming that any such lien existed in favor of the estate of Joseph Col-well as would prevent Hepworth from making a valid disposition of the property. He could sell the assets, or could make use of them as security for a loan; and so long as such acts were in good faith, the executors of Colwell could not effectually interfere. The execution by the surviving partner of the mortgage sued upon was within his powers, and the right of the mortgagee thereunder is superior to the claims of the executors.

Counsel for appellant insists that plaintiff should be compelled to resort to his mortgage upon the individual property of Hepworth, and exhaust that security before coming upon the property held by him as surviving partner. But the individual creditors object, with good reason, that the individual property is the primary fund for the payment of their debts. They argue that, as the loan now being enforced was contracted in aid of the partnership business, tne individual estate must be regarded as a surety upon the loan. That contention appears to be well founded.

It follows that the disposition of the cause at Special Term was correct, and the judgment must be affirmed, with costs.

Dykman, J., not sitting.

Judgment affirmed, with costs.


text:
    EDDIE C. RODERICK, Appellant, v. JOHN B. WHITSON, Respondent. JOHN VANCE, Appellant, v. LEVI HADFIELD, Respondent.

      Powers of trustees of a village, incorporated under chapter 291 of 1870, to pass - by-laws — duty of a constable in the village, under chapter 192 of 1885, to arrest persons guilty of their violation — arrest of members of the Salvation Army.

    In October, 1886, the board of trustees of the village of Matteawan passed an ordinance which rendered it unlawful for any person to go about or remain in any of the streets or on sidewalks of the village beating any drum or tambourine, or making any noise with any instrument for any purpose whatever, without the written permission of the president of the village, under the penalty of five dollars for each offense. On December 20, 1887, the plaintiffs in these actions, who, with a number of other persons, were marching along Main street, in the village of Matteawan, beating a drum and a tambourine and playing upon other musical instruments, were arrested by a police constable without a warrant and taken to the office of the defendant Whitson, a justice of the peace of the town in which the village was located. The justice wits not found and the plaintiffs were confined in the village jail until the next morning, when they were taken before the justice and tried and convicted for a violation of the village ordinance and sentenced to pay a fine of five dollars and stand committed to the common jail of the county until the fine was paid, not to exceed five days.
    The plaintiff having been discharged on the sanie day on a writ of habeas empus, the plaintiff Roderick brought an action for false imprisonment against the justice of the peace, and the plaintiff Vance brought a similar action against the police constable.

      Held, that by section 291 of the Laws of 1870, under which law the village of Matteawan was incorporated, the trustees were invested with power to make the fiy-laws in question, and that it was competent for the legislature to confer the power to do so upon the trustees, and that the ordinance had the same force and effect as a law passed by the legislature.
    That the constable had the power, and it was his duty, under chapter 192 of 1885, to keep order in public places in the village; to arrest persons concerned in noisy assemblages who were breaking the peace or violating the charter, m the by-laws or ordinances of the village, and convey them forthwith before the proper authority" to be dealt with according to law, and keep and restrain such persons in custody until committed or discharged.
    That the statute contemplated a criminal proceeding against persons who violated the ordinance in question.
    Appeals from judgments entered in the above-entitled actions, after a trial had at the Dutchess County Circuit, held on the first Monday of October, 1888, in the office of the clerk of Dutchess county on October 1, 1888, dismissing the complaint in each action. These actions were brought to recover damages for false imprisonment. On the 21st day of December, 1887, the plaintiffs, who belonged to what is called the Salvation Army, with others, were marching on Main street, in the village of Matteawan, about .eight o’clock in the evening, when they, with others, were arrested by the defendant Hadfield and placed in the lock-up in said village and kept there until the next morning, when they were taken before the defendant Whitson, who was a justice of the peace.

      H. H. Hustis, for the appellants.

      Samuel K. Phillips, for the respondents.
   Dykman, J.:

The village of Matteawan, in Dutchess county, is a municipal corporation, organized under the general law of the State of New York for the incorporation of villages, passed in 1870.

In October, 1886, the hoard of trustees- of the village passed an ordinance .of the village which rendered it unlawful for any person to go about or remain in any of the streets or sidewalks of the village beating any drum or tambourine, or making any noise with any instrument for any purpose whatever without the written permission of the president of the village, under a penalty of five dollars for each offense.

On the 20th day of December, 1887, the plaintiffs in these actions, with a number of other persons, were marching along Main street, in the village of Matteawan, beating a drum and a tambourine, which is a small drum, and playing upon other musical instruments, and they were arrested by a police constable while so engaged in the violation of an ordinance, without a warrant, and taken to the office of the defend, ant Whitson, who was a justice of the peace of the town where the village is located. The justice was not found, and the plaintiffs were confined in the village jail until the next morning, when they were taken before the justice and tried and convicted for a violation of the village ordinance, and sentenced to pay a fine of five dollars and stand committed to the common jail of the county until the fine was paid, not to exceed five days. The plaintiffs were committed to the jail and discharged the same day by the county judge of Dutchess county upon a writ of habeas corpus. Thereupon the plaintiff Roderick brought an action for false imprisonment against the justice of the peace, and the plaintiff Vance brought the same kind of action against the police constable. The complaints in both actions were dismissed, and there was a stipulation that the decision in one case should control the other, and so the plaintiff Roderick appealed from the judgment in his case.

As the case is presented to us the justification of the defendants for the arrest and imprisonment of the plaintiffs must be found in the charter and by-laws of the village of Matteawan, and we must ascertain whether they are sufficient for their protection. By the provisions of chapter 291 of the Laws of 1870, which is the general law under which the village of Matteawan was incorporated," the trustees are invested with power to make ordinances and by-laws for the preservation of the public peace and order, and to regulate and prevent any act, amusement or practice endangering property or person on the streets, sidewalks or public grounds, and for the apprehension and punishment of persons unnecessarily congregating upon the sidewalks or corners. (Tit. 3, § 3, subds. 2, 4, 14.) These statutory provisions are sufficiently comprehensive to justify the passage of the ordinance under which the defendants proceeded, and the ordinance was broad enough to include and prohibit the conduct for which the plaintiffs were arrested.

It was also competent for the legislature to delegate to the municipal corporations the power to make such a by-law, and it has the same force and effect as a law passed by the legislature. (Dillon on Municipal Corporations, § 245.) As regards the police constable, he had the power, and it was his duty to keep order in public places in the village, to arrest persons concerned in noisy assemblages, or who were breaking the peace or violating the charter or by-laws or ordinances of the village, and convey them forthwith before the proper authority, to be dealt with according to law, and keep and retain such persons in custody until committed or discharged. (Laws of 1885, chap. 192.) And where such offenses were committed in his presence, he possessed the power to make such arrests without warrant. The appellant challenges the proceedings before the magistrate, but the record before us discloses no irregularity; but if he acquired jurisdiction in the first instance, as we have seen he did, his subsequent acts were judicial, and he cannot J)e made answerable in damages therefor. We think, however, that the statute contemplates a criminal proceeding against persons who violate the ordinance in question. By chapter 385 of the Laws of 1875, when any person is arrested by a policeman, without process, under the general act of 1870 for the incorporation of villages, and such person is brought before the justice of the peace, such magistrate must proceed forthwith to hear, try and determine the complaint or charge upon which such person was so arrested; and such person must, upon conviction by the justice, be fined by such magistrate in accordance with any ordinance or by-law of the village for the punishment of such offense, and imprisoned in the county jail until such fine is paid, not exceeding ten days.

Our conclusion, therefore, is that the proceedings of the constable and the magistrate were fully justified, and that the complaints were properly dismissed.

The judgment in both cases should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


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

      Distributing, under a false name, a circular offering to sell counterfeit 'Money — conviction thereof, under section 527 of the Penal Code, as annended by chapter 687 of 1887.
    The defendant, who had assumed several names, called at the place oí business of Mary Casey, on India street, Greenpoint, about the middle oí May, 1888, and requested her to allow a letter to be directed to her place for him. She granted his request and he gave her a paper upon which was written the name of O. E. Fuller' as the address, and, in reference to the delivery of the letters, he informed her that he might send a boy or somebody, and directed her to deliver them to any one he might send.
    In pursuance of that arrangement one letter was received which was delivered to him personally when he called for it, and he sent a man for letters on two other occasions who received none. After that several letters came which were seized and opened by the officers of the law.
    One of the letters so seized was dated Thomas, Arizona territory, May 25. 1888, addressed to C. E. Fuller, and closed with the words “ address as per slip inside,” and upon that slip inside was written “John 0. Green, Solomonville, Graham Co., Arizona.” Inclosed in that letter and returned to 0. E. Fuller, 149 India street, Greenpoint, Long Island, N. Y., was a circular containing propositions to sell money, and stating that there was no risk as the money was perfect, as the inclosed newspaper clipping would prove, and requesting- persons addressed to come to New York city and consummate the deal, for the reason that the writer would only deal face to face with his customers, because that was the safest and most satisfactory way, and closing with these words: “ 1 will always return your letters to you, and as a guaranty of your confidence I also request the return of this letter and .newspaper clipping.” “Address as per slip.”
    The newspaper clipping purported to contain an account of the arrest and examination of Charles A. Becker for selling counterfeit money, and stated that the experts employed by the department at Washington made a sworn report ‘ ‘ that all these United States treasury notes found with Becker were printed with genuine plates used by former workmen in the printing-bureau,” and that they could not say that the bills were counterfeit, as they were positive the bills were as good as any issued by the government.
    Similar transactions by the defendant at another place and under another name were shown.
    Upon an appeal by the defendant from a judgment of conviction, he claimed that it was necessary for the public prosecutor to prove that the letters received at India street were sent there by reason of some relation or correspondence with the defendant, and he insisted that no proof had been given to show knowledge in the defendant of the reception of such letters, or that he made any attempt to get them, or that he knew the writer of such letters or had any correspondence with him, or knew the contents of the letters.

      Held, that the natural inferences from established facts were legitimate evidence in all cases, both civil and criminal, and that the deduction to be drawn from the uncontradicted testimony and the established facts in this case connected the defendant with the issuance of the circular beyond any reasonable doubt.
    That the evidence was sufficient to convict the defendant of circulating and distributing a circular offering for sale counterfeit paper money, and of using a false, fictitious and assumed name to promote and carry on a scheme for the sale, and offering for sale, of counterfeit paper money, and that his conviction for such crime, under section 527 of the Penal Code, as amended by chapter 687 of 1887, was justified by the evidence.
    Appeal by the defendant from a judgment of conviction in the Court of Sessions of the county of Kings, on the twenty-fifth day of July, 1888, convicting the defendant of the offense of distributing circulars under a false name, and offering to sell counterfeit money, as defined by section 527 of the Penal Code of the State of New York.

      Jerry A. Wernberg, for the appellant.

      James W. Ridgway, district-attorney, and John U. Shorter, assistant district attorney, for the People.
   Dykman, J.:

By the provisions of section 527 of the Penal Code of the State of New York, any person who, with intent to defraud, circulates or distributes a letter or circular, or any other written or printed mat ter offering for sale counterfeit coin or paper money, or giving or purporting to give information where counterfeit coin or paper money can be procured, is punishable by imprisonment or fine, or by both. That section of the Code was expanded by an amendment in 1887, so as to include within its ample provisions every device to which resort can be had for the sale or distribution of counterfeit coin or paper money (chap. 687, Laws of 1887), and the disclosures in the record now before us make it apparent that the enlargement of the statute came none too soon. The scheme devised by this defendant might have afforded him safety and enabled him to escape detection if the statute had been less comprehensive or less explicit and severe.

The defendant, who has used several names, called at the place of business of one Mary Casey, in India street, G-reenpoint, about the middle of Hay, 1888, and requested her to allow a letter to he directed to her place for him. She granted his request, and he gave her a paper upon which was written the name 0. E. Fuller as the address, and in reference to the delivery of the letter he informed the woman that he might send a boy or somebody, and directed her to deliver them to any one he might send. In pursuance of that arrangement one letter was received which was delivered to him, personally, when he called for it, and he sent another man for letters on two other occasions, but the man received none. After that several letters came which were seized and opened by the officers of the law.. One of the letters so seized was dated “ Thomas, Arizona Territory, Hay 25, 1888; ” addressed to 0. E. Fuller, and closed with the words address as per slip inside,” and upon that slip inside was written “ John S. Green, Solomonville, Graham Co., Arizona.” Inclosed in that letter, and returned to C. E. Fuller, 149 India street, Greenpoint, Long Island, N. Y., was a circular containing propositions to sell money and stating that there was no risk, as the money was perfect, as the inclosed newspaper clipping would prove, and requesting the person addressed to come to New York city to consummate the deal, because the writer would only deal face to face with his customer, because that was the safest and most satisfactory way, and closing with these words: “ I will always return your letters to you, and as a guaranty of your confidence I also request the return of this letter and newspaper clipping.” “Address as per slip.” The letter from Green was evidently an answer to that circular, and inclosing the same as requested. The newspaper slip purported to contain an account of the arrest and examination of Charles A. Becker for selling counterfeit money, when the experts employed by the department at Washington made a sworn report “that all these United States treasury notes found with Becker were printed from genuine plates used by former workmen in the printing bureau.” It was further stated in the slip that it had long been known that some person had possession of a set of plates supposed to have been furnished by one of the engravers in the engraving bureau; that the experts stated that they could not say the bills examined in court were counterfeit, as they were positive the bills were as good as any issued by the government. That some one was growing rich in a safe, fast and sure manner. It was also stated that the same parties were in possession of the original plates of the Dominion of Canada notes, one’s two’s and a five. There were ten letters of a similar character, addressed to C. E. Fuller, from different persons, each containing a returned circular, received at the India street station of the defendant, and all to the same purport as the one which we have described.

But the defendant did not confine his operations to one place. On the 19th day of May, 1888, he went to the store of Ellen Dougherty, at 610 Manhattan avenue, Greenpoint, and desired to have a letter directed to him at her store, and she consented, and he said his name was John P. Hays, and he wrote his address down on a small piece of paper. One letter came on the following Tuesday, which the defendant received, and two others after that day, which were handed over to the detectives. These two letters received at 610 Manhattan avenue and handed to the.detectives were similar to the other letters, and each contained the same circular.

The defendant was indicted for a violation of the section of the Penal Code already mentioned, and was tried and convicted on three counts of the indictment, which charges him with using a name and address other than his own, for the purpose of carrying on, or assisting others in carrying on, the unlawful business prohibited by the statute, and of carrying on a scheme or device for advertising the sale of counterfeit money by receiving and taking from the mail a letter directed to the false address of O. E. Fuller, that name being other than the correct name and address of the defendant. The defendant has appealed from the judgment of conviction, and, aside from some questions relating to the admission of testimony, the contention is that it was necessary for the public prosecutor, before he could ask for a conviction of the defendant, to prove that the letters received at India street and Manhattan avenue were directed and sent there by reason of some relation or correspondence with the defendant; and it is insisted that there was no proof to show knowledge in the defendant of the reception of such letters; that he made any attempt to get them; that he knew the writers of such letters, or was in correspondence with them, or knew the contents of the letters. Such are the objections which require examination.

It is to be observed upon this question, that natural inferences from established facts constitute legitimate evidence in all cases, both civil and criminal, and the deduction to be drawn from the uncontradicted testimony and the established facts in this case, connect the defendant with the issuance of the- circular beyond any reasonable doubt. Letters were received at India street addressed to C. E. Fuller, for the defendant, under an arrangement made by him for that purpose. They each acknowledge the receipt of a letter from the person addressed, and were answers to such letters, With the letters were a circular and a newspaper article which had been sent to the writer by the person whose letter he answered, and which were returned in pursuance of a request, contained in the circular. Such are the undisputed facts, and the natural inference from them is this : The letters were written and sent to the person from whom the circular and newspaper clipping were received, for they were answers to that circular. As, therefore, the letters were sent to the defendant, it follows that he sent the circular and newspaper clipping to the person who wrote and sent the answer to the circular to him. The address of such answer to the defendant, under the fictitious name designated by him at the place selected by him, can be accounted for naturally upon no other assumption, and that theory harmonizes all the facts and transactions developed upon the trial.

The same conclusion is reached respecting the letters sent to Manhattan avenue for the defendant. Upon such lines of reasoning we easily reach the conclusion that the defendant sent out the circular offering for sale counterfeit paper money and used ficti tious and assumed names other than his own proper name. The object of the newspaper article is also plainly apparent; that was sent out with the circular to create a belief that the money offered was made from government plates and, therefore, genuine, or as good as genuine. The story related in the article is doubtless a fabrication and invented to subserve the purpose for which it was employed. It would be idle to suppose or believe that such a proceeding could transpire in a court of justice. Bills struck from government plates obtained surreptitiously would be as fraudulent and spurious as if printed from counterfeit or false plates, because they would be without the sanction .of authority, and the interposition of such a defense would be destitute even of plausibility and fail to deceive any court or secure the discharge of any person accused of a violation of the statute under consideration. Our conclusion, therefore, is that the evidence was sufficient to convict the defendant of circulating and distributing a circular offering for sale counterfeit paper money, and of using a false, fictitious and assumed name to promote and carry on a scheme for the sale, and offering for sale, counterfeit paper money; and that his conviction for such crime under this statute was justified by the evidence. Moreover it was in the power of the defendant to explain or deny much of the testimony adduced against him upon the trial, if the same was susceptible of denial or explanation; and his failure to make any effort in that direction leaves all the testimony to operate against him with undiminished force.

The conclusion reached upon the main question determines some of the questions of testimony involved adversely to the defendant; and we find no error in the proceedings during the trial, either in the admission of testimony or in the charge of the trial judge. .

The conviction and judgment appealed from should, therefore, be affirmed.

Barnard, P. J., and Pratt, J., concurred.

Conviction and judgment affirmed.


author: Cullen, J.:

text:
    JOHN Y. McKANE, Appellant, v. JOHN P. ADAMS, as President of the Democratic General Committee of Kings County, Respondent.

      Voluntary political association—rejection of a member of the general committee — his remedy.

    An unincorporated political organization for Kings county, with a constitution providing for town and ward associations and for a general county committee, composed of delegates elected by such town and ward associations, which has, by a majority vote of the general committee, rejected a delegate elected thereto, will not be compelled, in the absence of any complaint as to the legality of such expulsion, to admit such delegate to membership in the committee.

      Where, as it appeared in this case, from the demand for judgment and the setting forth of the constitution of the democratic organization, that the democratic party or organization was to be considered as the real association, and the members of the committee as officers of such association and not as constituting a separate association, the court would not assume to interfere with the action taken by the committee in this case, as no rights of property ca> valuable personal privileges, such as seats in exchanges, membership in clubs or benefits, were involved.

      Daily v. Packard (Special Term, 1882) followed.
    It was insisted by plaintiff’s counsel that such a rule placed political organizations above the law.

      Held, that such organizations are not above the law, but, in the main, they lie outside of the law.
    That if the committee contracted debts their payment might be enforced, or if a convention were turbulent the police would preserve the peace and repress violence, but that political action cannot be the subject of contract or legal obligation.
    That the motives which shall dictate the course of a citizen in casting his own vote, or recommending a candidate for the votes of others, he is alone to judge of, and he cannot limit his own freedom in this regard by any contract or association.
    Appeal from a judgment, entered- in the office of the clerk of Kings county on October 10,1888, sustaining a demurrer interposed by the defendant to the amended complaint.

      A. H. Dailey, for the appellant.

      James & Thomas H. Troy, for the respondent.
   Cullen, J.:

We think the courts nave no jurisdiction of the controversy which is the subject of this action, and that the demurrer to the complaint was properly sustained. The complaint alleges that the Kings County Democratic organization is an unincorporated political organization, with a constitution which provides for town and ward associations and for a general county committee. That such county committee (which is the substantial defendant in this action, sued in the person of its president) is a voluntary unincorporated political association, formed of delegates or members elected by the ward or town associations; that plaintiff was formerly a member of such committee from the town of Gravesend; that in December, 1887, the association of that town for some political fault was disbanded by the general committee; that thereafter the committee proceeded to reorganize the town association and hold a primary election, at which the plaintiff was elected a delegate to the committee; that the plaintiff is and has been a democrat and qualified to sit in the committee, but that the committee, by a majority vote, rejected, and has since excluded, him. The whole constitution of the Kings County Democratic organization is annexed to the complaint. The relief sought is that it be adjudged that plaintiff was duly elected a member of said committee, and that the plaintiff have judgment for the possession of said office.

This action is without a precedent. The plaintiff states his former membership in the committee and his expulsion therefrom. But for what purpose we do not know, as no complaint of the legality of such expulsion is made. He bases his present right solely on the primary election. He, therefore, stands in the same position as one who had never before been a member of the committee. The action is, therefore, not to restore a party to a membership in a voluntary association, but to compel a voluntary association to admit a new member, unless the democratic party or organization is to be considered the real association, and the committee, officers of such association and not a separate association. From the demand for judgment and the setting forth the constitution of the democratic organization, this latter would seem the true theory of the complaint. But this constitution also provides for conventions and nominations, and the election of delegates to such conventions. If the courts are to determine the right to sit in the general committee, it is equally their duty to determine the rights to sit in conventions. This is a function of supervising political organizations that a court should be loath to assume, unless it is so clearly within its power that it is its duty to exercise the power when invoked.

I am clear that the reverse of this contention is the law. I have found no case where the courts have assumed to interfere with the action of voluntary associations, except where rights of property or valuable personal privileges, such as seats in exchanges, membership in clubs, or benefits, were involved. Ho such right is concerned here. In the case of Daily v. Packard (Special Term, 1882), the right to sit in the Republican General Committee was the subject of the action. It was there said: “ The sole privilege to which the plaintiff seeks restoration is that of association with his fellow-members in political action. He is excluded from no right, franchise or special privilege. The general committee has no powers or authority except such as are voluntarily yielded it by the voters of the party it assumes to represent. This voluntary allegiance is a thing incapable of transfer by order of the court. The committee has no franchise. There may be any number of such committees, and any persons may constitute themselves a committee. The defendants have the right to associate themselves for political purposes with whom they will for political purposes; and any number of them may, at any time, decline to act longer with persons objectionable to them. The court cannot compel the defendants to attend a meeting with the plaintiff, nor restrain the defendants from meeting by themselves, or with others, for political objects.” We think the rule thus enunciated is correct.

The plaintiff’s counsel insists that such a rule places political organizations above the law. This is an error. Such organizations are not above the law, but, in the main, they lie outside of the law. If the committee contracts debts, their payment may be enforced; if a convention is turbulent, the police must preserve the peace and repress violence. But political action cannot be the subject of contract or legal obligations. What motives shall dictate the course of the citizen in casting his own vote, or recommending a candidate for the votes of others, he alone is to judge; and he cannot limit his own freedom in this regard by any contract or association. The law only interferes to punish the use of such influences as the common morality of all persons and parties condemns, such as bribery, intimidation and the like.

It is stated in the complaint that the committee has a fund of $4,000. We do not think this fact affects the case. The plaintiff is not yet a member of the committee, and has, therefore, acquired no right in the fund; and, as already stated, what the plaintiff seeks is not the protection of any property right, but the right of political action.

The judgment appealed from should be affirmed, with costs.

--concurred.

Judgment affirmed, with costs.