author: By the Court.—Horace Russell, J.

text:
    HENRY HOFFMAN, an Infant, &c., Respondent, v. THE NEW YORK CENTRAL, &c., R. R. CO., Appellant.

      Master and servant—liability of railroad company for wrongful act of servant.—Judge's charge as to credibility.—Evidence— police and hospital records of accidents.

    Whether the wrongful act of the servant of a railroad company not inconsistent with the nature of his employment, was done in pursuance of his employment and in the interest of his employers, or wickedly and maliciously out of his own spite, is always a question for the jury; and when the jury find such act to have been done in pursuance of the servant’s employment and to serve the interests of the employer, the employer is liable.
    The above principles applied to a state of facts, showing that plaintiff, a lad eight years of age, being a trespasser on one of the dofeudants’ trains, then moving at the rate of ten miles an hour, was kicked therefrom by one of the defendants’ servants, thereby suffering severe injuries: the court holding that there was no distinction in the authorities between the commission of such an act by the conductor and by other servants of the company.
    A chance expression of opinion as to the credibility of a material witness, made by the judge in his charge, and which he subsequently qualified by a statement to the effect that the jury are not bound thereby, does not necessarily furnish good ground for exception.
    Records kepi at the police station and hospital, showing injuries received by plaintiff from an accident, are not admissible in evidence against him in an action for such injuries, it not appearing that the entries therein were made by persons having knowledge of the facts or from statements of the plaintiff.
    Before Speir and Russell, JJ.

      Decided December 6, 1880.
    Appeal from a judgment entered upon the verdict of a jury.
    The action was for damages for personal injuries occasioned to the plaintiff by being kicked off the defendant’s cars by the defendant’s servant. It has been three times tried. On the first trial, in April, 1877, the complaint was dismissed. (See 12 J. & S. 1.) On the second trial, in June, 1878, the jury disagreed. On the last trial, the jury rendered a verdict for the plaintiff for $5,000. From the judgment entered thereon this appeal is taken.
    The facts were as follows: On January 21, 1869, the plaintiff, then a lad about eight years old, living with his parents, started to go to school in Forty-fourth street. As he was going up Eleventh avenue, a train of tile defendants’ came along, and he jumped on the front step of the third or fourth car from the engine. When about fifteen feet above the northerly cross-walk if Fortieth street, the plaintiff was kicked off the car, the train at that time being in motion, going at the rate of about ten miles an hour. He fell with his leg under the rear wheels of the car, and it was crushed. Being taken to the hospital, Ms leg was amputated at the knee joint. There was a conflict of testimony as to who was the person that kicked the plaintiff from the. car; but there was sufficient evidence to sustain the verdict of the jury that the act was done either by the conductor or by one of the servants of the company employed upon the train.

      Frank Loomis, for appellant.
    Nelson, Smith & Leavitt, attorneys, and Nelson Smith, of counsel, for respondent.
   By the Court.—Horace Russell, J.

At the close of the plaintiff’s testimony,'the defendants moved for a dismissal of the complaint, on the ground that it appeared that the act complained of by the plaintiff was not within the scope, of any authority of the defendant’s servant, but was his own unauthorized, willful and malicious act. The same point, substantially, was taken in a variety of forms at various stages of the trial. The judge charged the jury on this point as follows : “If you believe the plaintiff was kicked off the car by a servant of the defendants’, and that such act of such servant was not within the scope of the employment of such servant, the defendants are not liable ; but I have charged you, in connection with this proposition, that'if you believe it was a servant of the defendants’ who did it while performing that service, and not for a wicked and willful purpose of his own, then the defendants are liable.” Exception was also taken to that portion of the charge of the judge which instructed the jury that the plaintiff might recover if the act was done by servants of the defendants other than the conductor. When this case was tried before, in April, 1877, the judge dismissed the complaint on the ground that it appeared that the act done to the plaintiff was a willful and malicious act of the person who did it, and was not done in pursuance of his duty under his employment. This was held error (12 J. & 8. 1). There has been some vacillation in the law relating to the point in question, but the following propositions seem to have been finally and firmly established: (1) That whether a wrongful act done by a servant of a railway company, not entirely inconsistent with the nature of his employment, was done by him in pursuance of his employment and to serve the interests of his employers, or wickedly and maliciously, out of his own personal spite, is always a question for the jury; (2) that where the jury find such act to have been done in pursuance of the servant’s employment and to serve the interests of the employer, the employer is liable. (This case at Gen. Term, supra; Rounds v. D. L. & W. R. R., 64 N. Y. 129; Isaacs v. Third Ave. R. R., 47 Id. 122; Cohen v. Dry Dock, East Broadway, &c., R. R. Co. 8 J. & S. 368; affirmed, 69 N. Y. 170; Jackson v. Second Avenue R. R., 47 N. Y. 274; Mott v. Consumers’ Ice Co., 73 Id. 543 ; Peck v. New York Central & H. R. R. Co., 70 Id. 587 ; Garetzen v. Duenckel, 50 Mo. 104; Bayley v. M. S. & L. R. R., L. R. S. C. P. 148; S. C., in Ct. below, L. R. 7 C. P. 415; Poulton v. L. & S. W. R. Co., L. R. 2 Q. B. 534; Oliver v. Northern Trans. Co., 3 Oregon, 84).

The distinction urged in reference to the conductor and other servants of the company, has no recognition in the authorities. In Bayley’s. case, above, it was a porter who did the wrongful act. In R. W. R. R. Co. v. Hack (66 Ill. 238), it was a servant employed to clean the cars. In Lovett v. Salem R. R. Co. (9 Allen, 557), it was the driver who simply ordered a boy to júmp off while the car was in motion. In Cohen’s case (supra), it was the driver of a horse-car which ran against, the plaintiff’s wagon. In Rounds’ case (supra), it was a baggage-man who kicked the plaintiff from the car.

In his charge to the jury, the learned judge at the trial said: ‘ ‘ The evidence comes, so far as the plaint-tiff’s side of the case is concerned, from Mr. Vogel and from this young man, a very intelligent and I think truthful youth—I mean, so far as a desire to tell the truth is concerned, but who was eight years old at the time the thing happenéd.” To this remark the defendant excepted, whereupon the judge said, “ I did think so, but I did not say that for that reason he ought to be believed.” This exception was pressed on the argument.

All questions of fact, including the credibility of witnesses, are for the jury. The judge at a trial ought not to .express an opinion on a question of fact, or on the credibility of a witness, however difficult it is sometimes not to do so ; but an expression of opinion like this, which now and then escapes the lips of a judge, is mot good ground for an exception. And certainly not in view of the qualification which the learned judge .subsequently added, which distinctly gave the jury to •understand that the-question, whether or not the wit-mess should be believed, was for them (Vale v. Rice, 5 N. Y. 155 ; N. Y. Fireman’s Ins. Co. v. Walden, 12 Johns 513 ; Stettiner v. Granite Ins. Co. 5 Duer 594 ; Reed v. Hurd, 7 Wend. 408 ; Hager v. Hager, 38 Barb. 92 ; Althorf v. Wolfe, 2 Hilt. 344; Bruce v. Westervelt, 2 E. D. Smith, 440; Durkee v. Marshall, 7 Wend 312 ; Jackson v. Packard, 6 Id. 415). Besides, if the .defendants’ counsel was dissatisfied with this expression of opinion from the judge with the qualification subse.quently made, his duty was to ask the judge, distinctly to submit the question of credibility to the jury (Dows v. Rush, 28 Barb. 157 ; Carnes v. Platt, 6 Robt. 270; Mallory v. Tioga R. R., 36 How. Pr., 202; S. C., 3 Keyes, 354).

The books kept at the police station and at the hospital, reciting the injury to the plaintiff when brought to those places, were properly excluded. Those books were kept only for the purposes of those institutions, and the entries were made, not by persons having knowledge of the facts recited, but from such information as they could get from other sources ; and there was no proof that that information came from the plaintiff so as to bind him as to an admission. Under no rule were they admissible.

The other exceptions in the case I do not regard of sufficient importance to demand discussion.

The judgment should be affirmed, with costs.

Speir, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    GEORGE R. WHITMAN, et al., Respondents, v. ABEL HORTON, Appellant.

      Factor—action to foreclose lien.—Evidence—books of account.—Objection to, when waived—when admission of without prelimina/ry proof not error.— Oounter-claim—when ca/nnot be withdrawn.

    A factor may bring an equitable action to foreclose his lien upon goods of the consignor in his possession for general balance of account, and is entitled therein to judgment for deficiency after the sale of the consigned goods.
    Where plaintiff’s books of account have been used in evidence by both , parties for several days, and an expert has, by stipulation, made summaries of the entries therein, which were regarded as evidence for the defendant, it is too late for defendant to object to the admission of said books on the ground that the proper preliminary proof to justify their reception as original evidence, has not been given.
    Books of account in which the book-keeper has made the entries upon information from other persons or from other books, cannot be admitted in evidence merely upon his testimony as to their general accuracy.
    Where the person who conducted the business and made the entries in that portion of plaintiffs’ books which relates to the question in controversy, testifies that such entries are in his handwriting, and are correct; it also appearing that during the period of the transactions involved, accounts were rendered to defendant from time to time, and by him compared with said books, and settlement and correction of any differences made, and that a final account had been rendered to defendant, upon which he had made a payment, and which was treated by all parties as an account stated, the referee’s, finding agreeing therewith, and with the expert’s summary—the admission of said books in evidence without the technical preliminary proof as to their correctness, &c., does not constitute such error as to justify interference with the judgment.
    Where the defendant has set up a counter-claim, based on transactions directly involved in the accounting for which the action is brought, the court is justified in refusing to allow defendant to withdraw it at the close of the testimony.
    Before Sedgwick, Ch., J., and Speir and Russell, JJ.

      Decided December 6, 1880.
    Appeal by defendant from a judgment entered upon the report of a referee.
    This is a suit in equity, brought by the plaintiffs as commission merchants, to foreclose by judicial sale, their lien on certain goods in their possession belonging to the defendant, their consignor ; and for a judgment for the amount of their over-advances. ■ The plaintiffs, as commission merchants, received from the defendant, between March 30, 1872, and January 6, 1876, a large quantity of woolen goods, to be sold by them upon the usual commissions and charges; and from time to time they advanced to the defendant moneys, on account of the goods consigned to them. This business terminated in January, 1876, at which time the plaintiffs had in their possession a quantity of goods consigned to them by the defendant, which, by reason of their being out of style, were not marketable, of the value of about $1,200 ; and the defendant was indebted to the plaintiffs for their advances to him, to the amount of something over $5,000. After various negotiations, the plaintiffs gave the defendant notice to take away his goods and repay to them the amount of their over-advances, or they would sell the goods in their possession at auction, and hold him for the deficiency. This the defendant by letter forbade them to do, and demanded that the goods remaining in their possession should be sold in the usual way, or he would hold them for damages. Thereupon the plaintiffs brought this action. The referee found that there was due the plaintiffs, at the date of his report, the sum of $5,394.44, for which they were entitled to judgment; that the goods remaining in their possession should be sold at judicial sale, and, after the application of the amount received to the payment of the plaintiffs’ judgment, the plaintiffs should have judgment against the defendant personally for the deficiency,

      Walsh & Eckerson, for appellant.

      Henry Stanton, for respondents.
   By the Court.—Horace Russell, J.

I have carefully examined the evidence, and am satisfied that, not only were the referee’s findings of fact sustained by evdence, in which case courts are not in the habit of reversing findings of fact, but that the weight of evidence clearly preponderated in favor of the findings of the referee.

The motion to dismiss the complaint was made at the close of the testimony upon two grounds. (1) That it did not state facts sufficient to constitute a cause of action. (2) That there was not' sufficient evidence to entitle the plaintiffs to the relief asked for. The second objection may be regarded as disposed of by what-has already been said with. reference to the referee’s findings of fact. The first objection—that the complaint did not state sufficient facts to constitute a cause of action—seems to have been based upon the theory that such an action as this by a factor against his consignor could not be maintained ; that the only remedy of a factor against his consignor for advances, was to sell either in regular course of business or at auction, upon notice to his consignor, the goods remaining in his possession, and then bring an action at law for the deficiency. The authorities cited in support of this proposition: Gihon v. Stanton (9 N. Y. 476), Mattram v. Mills (2 Sandf. 189), Edwards on Factors & Brokers, 40, 41; Corlies v. Cummings (6 Cow. 184), 3 Wait Actions & Defenses, 297, do not go to the extent claimed. They only hold that before a factor can bring his action at law for the amount of his over-advances, he must first exhaust the primary fund or property in his hands.

A factor, as such, has a lien upon all the goods which come into his hands, for his commissions and advances, and may retain the goods and proceeds, not only for the charges incident to the particular goods consigned, but for the balance of his general account (Edw. on Bailm. 280, 281, 308, 309; Bradford v. Kimberly, 3 Johns. Ch. 431, 434; Brownell v. Curtis, 10 Paige, 205, 210; Brooke v. Bryce, 21 Wend. 16, 17 ; 2 Kent Comm. 640).

The factor may enforce his lien by civil action of an equitable nature, like the former bill in chancery. “ A court of equity will, in case of principal and factor, entertain jurisdiction” (1 Story Eq. Juris. §§ 464, 506; 3 Black. Comm. 437). “ Satisfaction of a lien may be enforced by a bill in chancery” (2 Kent Comm. 643). “ The factor is generally regarded in the decisions as invested with the rights of a pledgee of the goods intrusted to him, and charged with very nearly if not the same responsibilities (Edw. on Bailm. 213, 220). The law, as at present established, leaves an election to the pawnee. He may file a bill in equity against the pawnor for a foreclosure, and sell, or he may proceed to sell ex mero motu upon giving notice of his intention to the pledgor, but a judicial sale is most advisable in cases of pledges of much value, as courts watch, any other sale with uncommon jealousy and vigilance, and any irregularity may bring its validity into question (Story on Bailm. § 310 ; Edw. on Bailm. 249, 250 ; 2 Story Eq. Juris. § 1033).

Not only on the grounds already stated, but because the plaintiffs stood in a fiduciary relation to the defendant—so that an accounting between them was necessary —had they a right to bring their action in equity. Their right to a judgment for a deficiency after sale of the consigned goods, is no less clear. “A factor advancing money on goods in his hands, is not confined in his remedy for the advances to the goods or fund deposited. He gives a joint credit to the fund and to the person of his principal ” (Edw. on Bailm. 282 ; Corlies v. Cummings, 6 Cow. 181,184; Marfield v. Goodhue, 3 Coms. 62, 73; Burrill v. Phillips, 1 Gal. 360; Peisch v. Dickson, 1 Mason, 9 ; Upham v. Lefavour, 11 Metc. 174). The action then was properly brought and in proper form.

The proper preliminary- proof was not made to authorize the introduction in evidence of the plaintiffs’ books of account at the time when they were introduced, nor was that lack cured by the subsequent technical proof. The book-keeper had made the entries introduced in evidence, upon information from other persons or from other books. His testimony, therefore, as to the general accuracy of the books, did not make them admissible in evidence (Gould v. Conway, 59 Barb. 355; Burke v. Wolfe, 38 Super. Ct. 263). But an examination of all the other evidence in the case makes it quite apparent that the defendant’s objection on that subject was too late. The books had already been used in evidence for several. days, and by both parties to the suit. The expert had, by stipulation, made summaries of their entries, which were regarded as evidence for the defendant. Then, too, that portion of the books which related to the question really in controversy was traced to the person who conducted the business and made the original entries, who appeared, and testified that the entries of transactions were in his handwriting, and were correct. It also appeared, that during all the time of the business which was the occasion of this controversy, the defendant had his desk in the plaintiffs’ office ; that from time to time, when his account was rendered to him, he was in the habit of going over the account and the books with the book-keeper, and whatever differences arose were the subject of negotiation and settlement'. A final account was rendered to him shortly before he left the plaintiff’s place of business, which by all the parties seems to have been treated as an account stated ; the defendant thereafter paid on account thereof the sum of $500. This final settlement of account, the expert book-keeper’ s memorandum from" the books, and the referee’s finding of fact, all substantially agree, so that the introduction and reception of thq books without the technical proof referred to, did not, under the circumstances, constitute such error as to justify any interference with the judgment.

At the close of the testimony, the defendants, who, in their answer had set up a counter-claim, asked leave of the referee to withdraw it. His refusal to grant the request is made the subject of exception. I do not think there was any error in this. The plaintiffs sued for a balance, after giving the defendant credit for all those things which were the subject of his counterclaim. The action was in the nature of an accounting. Testimony had been fully taken in regard to all the claims of both parties. The referee did right in refusing, at that stage of the action, to permit the defendant to withdraw his claims, whether they be called counter-claims, or items which should be credited to him in the accounting. All the matters in controversy ought to have been determined as they were in one action (Miller v. Freeborn, 4 Robt. 608; Wilder v. Boynton, 63 Barb. 547). The other exceptions in the case do not seem to be of sufficient importance to require discussion.

I think the judgment should be affirmed, with costs.

Sedgwick, Oh. J., and Speir, J., concurred.


text:
    VEDDER VAN DYCK, as Received, &c., Appellant, v. CHARLES JONES, Respondent.

      Liability of indorser who has not received notice of presentment and nonpayment— how revived—conditional acquiescence hy indorser in charge of such check to his hank account—effect of.

    Before Crams, Cli. J., and Fbeedman, J.

      Decided January 5, 1880.
    Appeal from judgment dismissing the complaint.
    The action was brought to charge the defendant, as indorser, with the amount of a certain check of Patrick E. Reed, of the presentation and non-payment of which the defendant was not notified according to law. With a single exception, there was no evidence in the case that the defendant admitted or recognized a liability, on Ms part, to pay the check.
    This exception relates to the giving of two certain checks on July 12, 1877. One of these was the check of Thomas B. McQuade, bearing date on that day, drawn upon the Yorkville Savings Bank in favor of the defendant, for the formal transfer of a balance of $589.05, claimed by McQuade to stand in Ms favor upon the books of the bank under a certain arrangement. made between himself and other persons, including the defendant, on the one side, and the bank on the other side, for the transfer of balances ; and the other was the check of defendant’s firm, also bearing date of that day, drawn upon the Bull’s Head Bank to the order of the defendant, for $462.58, and indorsed by Mm. Up to this time, the defendant had insisted that he was not liable, but on the day named he delivered the checks referred to to the secretary of the Yorkville Savings Bank, in settlement of the balance claimed to stand against him by reason of the Reed check having been charged to his account. Such delivery took place after the said bank and its officers had been enjoined from continuing business, but the checks came into plaintiff’s hands when he took possession of the assets of the bank as receiver, after his appointment as such, and the plaintiff,-with knowledge of the circumstances under which they were given, retained them without objection or offer to return them ; and before the commencement of this action he collected from the Bull’s Head Bank the amount of the check drawn upon the latter.
    The court, at general term, held, that in the absence of any admission or recognition of his liability to pay the check, by the defendant, the referee was right in his conclusions and views, and further said:
    “The giving of the checks, under these circumstances, constituted only a conditional acquiescence by the defendant in the charge of the Reed check to Ms account, and the plaintiff had his election to accept or reject the acquiescence proffered. He could not affirm the transaction in part and repudiate it in part. The defendant not being then legally liable in any form, was at liberty to dictate the conditions upon which he was willing to settle the claim made against him and to insist that, at least so far as his account was concerned, the arrangement for the transfer of balances should be carried out. This being so, it is immaterial whether the arrangement for the transfer of balances as originally made, was, or was not, a valid one.”

      Ely & Smith, for appellant.

      Alexander Thain, for respondent.
   Opinion by Freedman, J.; Curtis, Ch. J., concurred.

Judgment affirmed, with costs.


author: Per Curiam.

text:
    MARY A. EGAN v. EDWARD T. WALSH, et al.
    Before Curtis, Ch. J., and Speir, J.

      Decided February 2, 1880.
    Appeal by a receiver, from an order of the special term confirming the report of the referee appointed, to pass his accounts. Two charges for legal services were contested, one of which was reduced and the other disallowed by the referee.

      W. J. Lacey, for receiver and appellant.

      David Mitchell, for defendant.
   Per Curiam.

The order appealed from is affirmed, with $10 costs, and disbursements, to the defendants.


text:
    NATHANIEL D. HIGGINS, Respondent, v. HENRY M. BARROWCLIFFE, Appellant.

      Indorser has one day after receipt notice protest to seme prior indorser.— Parol evidence inadmissible to vary indorsement.

    Before Curtis, Ch. J., and Speir, J.

      Decided February 2, 1880.

      Appeal by the defendant, from the judgment entered against him upon a verdict, and also from the order denying his motion for a new trial, made upon the judge’s minutes.
    The defendant by his answer put in issue the protest of the draft upon which he was sued as an indorser. He also controverted the allegation in the complaint, of due service upon him of the notice of protest, and alleged a parol agreement with one Higgins, releasing him from his indorsement. The court, at general term, said : “ The evidence shows due presentation and protest of the draft, and service upon the defendant of notice thereof. The proofs fail to show any irregularity on the part of the notary, or the plaintiff. The plaintiff, as indorser, had one day after the receipt of the notice of protest within which to serve notice on the . prior indorser (Farmers’ Bank of Bridgeport v. Vail, 21 N. Y. 488 ; West River Bank v. Taylor, 34 Id. 128 ; Howard v. Ives, 1 Hill, 263).
    “ The defense also set up in the answer, that, by a parol agreement with one Elias S. Higgins, the defendant was not to be held liable on his indorsement, is not available, as Elias S. Higgins was not the owner of the draft, and could make no such agreement; and even if the defense had been properly pleaded, parol evidence is inadmissible to vary the implied contract of an unrestricted indorsement (Cottrell v. Conklin, 4 Duer, 50, and cases there cited; Bank of Albion v. Smith, 27 Barb. 489).

      Thomas & Wilder, attorneys, and Edward P. Wilder, of counsel, for appellant.

      Marlin & Smith, attorneys, and Aaron Pennington Whitehead, of counsel, for respondent.
   Opinion by Curtis, Ch. J.; Speir, J., concurred.

Judgment and order appealed from, affirmed, with costs. .....


text:
    NATHAN VAN BEIL, Appellant, v. HENRY W. PRESCOTT, et al., Respondents.

      Trade-mark—wards “Bye and Bock ” cannot be appropriated as such.

    Before Curtis, Ch. J., and Speir, J.

      Decided February 2, 1880
    Appeal by the plaintiff from a judgment dismissing the complaint.
    This was an action brought by the plaintiff to restrain the defendants from the use of the name “ Rye and Rock,” as applied to a mixture of rock candy dissolved in rye whisky.
    Plaintiff, in his complaint, claims that he adopted, in 1878, the words “Rye and Rock” as his trademark.
    The court, at general term, said: “ We concur in the views of the learned judge at the special term that the words ‘ Rye and Rock form a description of the article of which the liquid to which plaintiff applied the words is compounded, and, therefore, it is not a trade-mark. A trade-mark is an arbitrary sign or name. Any person who has a right to make the liquid has a right to give a description of it.
    “We are also of the opinion that the plaintiff was not the first to adopt and use the words ‘ Rye and Rock,’ as indicating the compound in question.”

      A. H. H. Dawson, for appellant.

      John A. Foster, for respondent.
   Opinion by Curtis, Ch. J. ; Speir, J., concurred.

Judgment appealed from affirmed, with costs.


text:
    ELIZA M. SMITH, Respondent, v. THE EXCHANGE FIRE INSURANCE COMPANY, Appellant.
    1. Fire Insurance.
    1. Proofs of loss.
    1. Defectiveness of, when defense is not tenable.

    (a) Where no objection was made to the form or sufficiency of the proofs furnished or to the particularity of their details, and none were suggested at the trial which could not have been readily obviated to the extent of the duty to furnish created by the policy, if it had been suggested that greater minuteness of details was desired; and the company acted on the proofs furnished, and employed an adjuster to adjust the amount of damages, and the adjuster acted with the knowledge and co-operation of the assured, and concluded that the loss exceeded the whole sum insured by all the policies insuring the property ; a defense that the proofs of loss were defective is not tenable.
    Before Curtis, Ch. J., and Speir, J.

      Decided February 2, 1880.
    This action was brought on a policy of insurance issued by defendant to Fitzhugh Smith. Loss, if any, payable to plaintiff’s mortgagees.
    The action was referred to J. S. Bosworth, who found the facts and law in favor of plaintiff. He wrote an opinion in which he held as set forth in the head-notes.
    From the judgment entered on Ms report, defendant appealed to the general term.

      W. K. Thorn, attorney, and J. Langdon Ward, of counsel, for appellant.

      Charles M. Marsh, attorney, and of counsel, for respondent.
   Per Curiam.

We have examined this case with reference to the very able and painstaking opinion of the learned referee, and see no good ground for differing with him in the result.

The judgment should be affirmed, with costs.


text:
    DANIEL E. KENDALL, Respondent, v. HENRY P. NIEBUHR, AND OTHERS, APPELLANTS.
    Before Curtis, Ch. J., and Speir, J.

      Decided February 3, 1880.
    The judgment in this case was affirmed on the opinion at special term, which was adopted as that of the general term.
   The case at special term is reported in 45 N. Y. Superior Court Reports, on page 542.


text:
    GEORGE S. SCOTT, Appellant, v. DANIEL SANFORD, Respondent.
    I. Contract.
    Rights of parties under a contract where one is to build a certain wall at the joint expense of both, and certain other things are to be done at the expense of the other.
    1. Contributions for expense of wall, when cannot be
    CALLED FOR.
    1. When the party who was not required so to do, built a wall, but not the one called for by the contract, he cannot call on the other for contributions.
    3. Expense of other things.
    1. The fact that he has built a wall, for the expense of which he cannot call for contributions, does not relieve him from Ms obligation to pay for the other things, which were to be done at his expense.

      IL Trial, conduct or.
    1. Evidence. Non-production of paper called for.
    1. The fact that a party declines to comply with a notice to produce, does not make the subsequent admission of a paper offered by such party, substantially differing in its terms from the one called for, although bearing on the same subject-matter, error calling for a reversal.

    Before Curtis, Ch. J., and Speir, J.

      Decided February 2, 1880.
    The controversy arose out of the following contract (being Exhibit A).
    “Whereas, George S.- Scott, of 36 Broad street, New York, in improving and grading his lot in rear of lot No. 29 West 56th street, New York city, occupied by Daniel Sanford, removed the earth on his lot, supporting and keeping in place that upon said Sanford’s lot, in consequence of which the rear of said Sanford’s lot has caved or slided off, and by reason of the difference in the grade of said lots it becomes necessary that some erection be made to support and keep in place the rear of said Sanford’s lot.
    “It is hereby agreed that the said Sanford construct a wall wholly upon his own land and immediately adjoining the rear of said Scott’s lot, as high as the surface grade of said lot No. 29, and sufficiently strong to support the rear of said lot, at an expense not exceeding one hundred and eighty dollars, the expense of which shall be equally divided between said Scott and Sánford.
    “The cesspool and flagging, and fence upon said Sanford’s lot, injured or destroyed by the said Scott in. improving his said lot, to be restored and made good at the sole expense of and by said Scott.
    “In witness whereof, the said parties have hereunto set their hands and seals this 25th day of November, 1872. “ Geo. S. Scott, [seal.]
    “Daniel Sanford, [/seal.]”'

      From the evidence it appears that Scott constructed the wall on his own land.
    There was conflicting evidence as to the expense of restoring the cess-pool, &c., on'Sanford’s lot.
    In the course of the trial, defendant having been called on (pursuant to notice) to produce a contract whereby, plaintiff was to employ a mason to build a wall between his lot, and defendant’s lot adjoining thereto on the rear, declined to produce it. Subsequently defendant offered to read in evidence, the paper previously marked “Deft’s Ex. A. for identification” as the written agreement between the parties.
    Plaintiff objected to its-introduction, on the ground that defendant, having refused to produce the written agreement when plaintiff called for it-on the trial, in accordance with plaintiff’s previous written notice to produce it, and having allowed plaintiff to give secondary evidence of the contents of that agreement, and having cross-examined plaintiff respecting its contents, cannot offer it in evidence now.
    The objection was overruled. An exception, was taken. The written agreement was admitted, and to its admission plaintiff objected and excepted.
    The court charged the jury: “ This paper (Exhibit A.) undoubtedly constitutes the contract between the parties upon which their rights and liabilities depend. Under this agreement it was not the duty of the plaintiff to build the wall, but the duty of the defendant. ¡(The plaintiff having built another wall, and one, as the evidence stands, entirely on his own ground, which ¡the contract does not call for, and which the law does mot imply a request that it should be done, he cannot recover anything for the building of the wall.)” (To •which portion of the charge included in brackets plaintiff’s counsel excepts.)
    “ On the other hand, the contract provides that the plaintiff shall standthe expense of repairing the cesspool, flagging and fence to the same condition in which they were before they were injured, and the defendant is entitled to recover whatever he may have reasonably expended in that regard.
    “Now there is a difference between the testimony of Mr. Rogers and the testimony of Mr. Hogencamp, as to what was a reasonable amount to be expended for that purpose, and that question 1 submit to you.”
    Plaintiff’s counsel requested the court to rule that if by reason of the contract not having been complied with, no liability was imposed upon the defendant, the plaintiff is equally released from liability.
    The request was declined and an exception taken.
    The jury brought in a verdict for the defendant against the plaintiff, assessing the damages at the sum of ten cents.
    Plaintiff’s counsel moved for a new trial on behalf of plaintiff, on all the grounds in section 999 of the Code.
    Motion denied; exception taken.
    From the order denying the motion and the judgment entered upon the verdict, plaintiff appealed.

      Adolphus D. Pape, for appellant,

      A. C. Chapin, for respondent.
   Per Curiam.

Judgment and order affirmed, with costs.


text:
    MARY E. LUCKY, et al., Appellants, v. ANN M. ODELL, Respondent.

      Property purchased, by husband in his own name, with wife's funds, under agreement with her that title should be taken in joint names—wife may purchase on foreclosure sale, though husband has died leaving children of which she is guardian in socage—admissions of husband as to purchase, &c., with wife's funds, admissible against heirs.

      Before Curtis, Ch. J., and Speir, J.

      Decided March 1, 1880.
    This is an appeal from a judgment; of the special •term, dismissing the complaint.
    The plaintiffs are children and heirs at law of James M. Odell, who died intestate on January 31, 1864, leaving the mother of said children his widow.
    At the time of the death of James M. Odell, he was seized of the record title to certain real estate which is described in the complaint, and on which there was a certain mortgage for $500,
    After his death an action was begun for the foreclosure of said mortgage, to which all parties to the present suit were parties, which resulted in a judgment for the mortgagee for the sum of $744.22, principal and interest, and for a sale of the mortgaged premises. Pursuant to this judgment the property was sold by the sheriff on October 18, 1864, and purchased by the defendant (according to leave contained in the judgment), and the sheriff duly executed a deed to her as the purchaser. The present plaintiffs being infants were all duly represented in the foreclosure proceedings by their guardian ad litem.

    The action was brought on the theory that the defendant at the time of the sale and purchase under the foreclosure • proceedings was guardian in socage of the plaintiffs, and as such was precluded from buying the property on her own account; 'and judgment was demanded awarding the title to the plaintiffs as heirs at law of James M. Odell, defendant’s husband, and for the partition of the property and an accounting as to rents and profits.
    The answer alleged, among other things, that the property was originally purchased with defendant’s money, under an agreement with her husband that the title be taken in their joint names, and it further alleged that she never discovered that the title had been otherwise taken, till after her husband’s death.
    The court below found that the property was purchased by James M. Odell with the defendant’s money, pursuant to an agreement that the property was to be held for the joint benefit of both; that the husband acted in reference thereto as agent of the defendant; that it was his intention at the time of the purchase of the premises that the same should remain and continue the property of himself and wife ; and that she so understood it at the time of the purchase; and thereafter both husband and wife continued to use and occupy the premises as a home for themselves and children until his death.
    The court, at General Term, after consideration of testimony showing certain admissions made by the deceased in his lifetime, that the property was bought by him with defendant’s money, &c., said:
    “The declarations of the intestate were admissible. It was shown that he is deceased, that he possessed competent knowledge of the facts or that it was his duty to know them, and that the declarations were at variance with his interest. These admissions are admissible in evidence against the representatives in the same manner as they would have been against the intestate (1 Greenl. Ev. §§ 147-155, 189).
    “ The defendant had the right to purchase at the sale not only because she was authorized by the judgment in the foreclosure action to do so, but being vested as survivor with the fee of the property, she could protect her rights and interest by bidding in the same for her own exclusive benefit and advantage.”

      Culver & Wright, attorneys, and S. Jones, of counsel, for appellants.

      George W. McAdam, attorney, and James Ciark, of counsel, for respondent.
   Opinion by Speir, J.; Curtis, Ch. J., concurred.

Judgment affirmed, with costs.


text:
    GERTRUDE E. ARMITAGE, Respondent, v. DANIEL MACE, Appellant.

      Gift—what necessary to constitute—when question for the jury.— Value of chattel—what evidence of.—IAvery-statile-lceeper's lien.

    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    This action was for the recovery of the possession of a mare claimed by the plaintiff to be her property. Her title was disputed by defendant. On the trial, the court directed a verdict for plaintiff. The defendant had received from the husband of plaintiff the possession of the horse. In this and all other dealings with defendant, the husband acted as if on his own behalf, and not as if her agent. The question on the trial was, whether the husband had ever made a gift to her of the horse. Several witnesses said that the plaintiff owned the mare, or that the husband had presented it or given it to the plaintiff. Plaintiff testified that her husband said to her : “ I will give you the horse and that she should be mine.” This was said at a place where there could be no actual delivery, and there was no testimony as to a symbolical delivery. Beyond this, the evidence did not make it certain that there had ever been any change of possession of the horse. °
    The court, at General Term, after holding that if the U'sriinony did not fail to show title by gift, it should ii.ivv been submitted to the jury, with instructions as to the legal requirements of a gift,—and further, that the testimony of plaintiff’s witnesses as to the gift to her was not conclusive, involving a construction of what constituted a gift, or an inference from facts in evidence—proceeded :
    “The jury would have been at liberty to find that the horse had always remained in the husband’s possession, and that he without interruption exercised acts of dominion, in his own right, over it. If the words that have been taken from the testimony of the plaintiff implied that there was a present intention to give rather than a promise to give, and which the jury should have determined, it was necessary also to show that there had been a contemporaneous delivery and acceptance.
    “It is proper further to say that no evidence was given of the market value of the horse, and that the price for which the plaintiff sold it was not evidence against the defendant of the real value (Roe v. Hanson, 5 Lans. 305).
    ‘‘ I think there can be no doubt that if the defendant took possession of the mare, under the agreement set out in the reply, he could have no lien for care and board, under chapter 98 of Laws of 1872, until some new agreement for care, board, &c., should be made. If it is supposed that there might be a lien, for the keeping of the horse, after a date, when, it is assumed, the first agreement came to an end, it is sufficient for the purpose of this case to say, that the notice of lien failed really to make the lien under the statute, because it was for the keep, before as well as after October 20. So long as the defendant kept the horse under the provisions of the agreement set out in the reply, the husband of plaintiff or the plaintiff was not liable for the keeping, &c. There was a joint adventure (i. e., for “entry into races, and for sale”), and the defendant agreed to “furnish and provide livery, keep, board, shoeing, training and transportation for said ” mare.

      Peter Mitchell, for appellant.

      Edwin Kempton, for respondent.
   Opinion by Sedgwick, J.; Freedman, J., concurred.

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


text:
    HENRY J. HOFFMAN, Respondent, v. S. LIVINGSTON, Appellant.

      Principal and, broker—when fiduciary relation exists between—when commissions not recoverable, •services rendered by broker being of no value, but mode of transacting business having been left to him.—Jury trial ordered on reversal.

    Before Sedgwick, Speir, and Freedman, JJ. -

      Decided April 5, 1880.
    The action is brought by the plaintiff, a stock broker, against the defendant as his principal, claiming a balance of the account against her, which wholly consists of charges for services under the name of commissions.
    The contract between the parties was made at two interviews between them, and is stated by the plaintiff in substance as ■ follows : The defendant at the first interview said that she had been trading in stocks and had lost $800 on one hundred shares of stock in another office, and asked the plaintiff if he would take her account in his office. He told her he would consult with his partner and see what he thought of it, and would let her know. In two or three days after this he told the defendant that he had seen his partner, Mr. Ryan, who did not care about speculating, not being in the office himself, but that the plaintiff had made arrangements with him to take it in the office on his own responsibility. He then told her that the New York Exchange imposed a condition of one-eighth per cent, each way to a party not a member of the Stock Exchange. She said she understood this—that she had speculated in stocks before, and did not wish him to buy or sell stocks, and to hold on to them, but desired him to make her account active, by buying and selling stocks at small differences where larger ones could not be gotten. Plaintiff told her he would require a letter from her holding herself liable for the transactions he made, and she said she would sign such a letter, provided he would draw it up and send it to her, and that she wished to begin with a deposit of §1,000. He asked her whether she wanted to limit him to any amount of stocks to be bought or sold. She said no, that must be conducted according to his own judgment and to the best of his ability—that she left it wholly to him as to when to buy stocks and when to sell them, and what amounts.
    The letter was prepared by the plaintiff, sent to and signed by the defendant, being ante-dated three or four days. The defendant does not vary the plaintiff’s narration of what occurred at these interviews, except as to how long and what experience she had had in stock speculations.
    The court, at General Term, said : “It is plain from the verbal arrangement between the parties, as also from the whole case, that the plaintiff’s partner was a member of the Stock Exchange, and that the plaintiff was not a member, but conducted the business through the agency of his partner, while he took upon himself the whole responsibility and secured the profits. It is presumed it was for this reason that he told the defendant that the Stock Exchange imposed a commission of one-eighth per cent, each way to a party not a member
      of the board. The phraseology here used is significant, Could any one doubt that if the plaintiff had been dealing with a person of experience, and accustomed to habits of business, the question would have been asked what was meant by such a statement ? For what purpose was the account taken by one member of a firm of brokers, who was not a member of the Board, while the other was a member and attended the Exchange to buy and sell upon orders, unless there might be a commission each way to a party not a member of the Stock Exchange ? This certainly was not a statement which would be likely to inform the defendant that she would be obliged to pay plaintiff a conqunission of one-eighth per cent, on each transaction, and goes far to support her assertion under oath that in her interviews with the plaintiff the subject of paying a commission was never mentioned. The first information as to the commission charge the defendant had, was by a letter from Mr. Anderson, and such was her confusion and simplicity that she sent the letter to the plaintiff, her agent, confessing that she could not understand it, and asking him to see Mr. Anderson, her friend, and explain to him.
    “ The grqund of defense relied upon to defeat this action is, that under the verbal contract as stated by the plaintiff, he had failed to transact her business confided to him with that amount of prudence, ordinary skill and diligence which she had a right to expect at his hands, and that therefore he is not entitled to his commissions for that service. The want of ordinary skill and diligence in every case must in a great measure depend not only upon the ability of the parties and their knowledge and experience in dealing with the subject in hand, bn t also the character of the engagement under which the parties act. It is stated by the plaintiff “that he asked her whether she wanted to trust him as to any amount of stocks to be bought or sold; she said that must be conducted according to his own judgment and to the best of his ability—that she left it wholly to him when to buy and when to sell.” It seems to us that the relation established between the parties was of a fiduciary character and largely imposed confidence and good faith in discharge of the duties assumed by the plaintiff. The defendant is a woman not usually accustomed to dealings of this kind, and the conduct of the parties in these interviews shows her implicit trust in her agent. It is true he represents her as claiming to be a stock speculator and having knowledge of the business. In his examination of her as to her experience in stock speculations she states under oath ‘ that she had only one transaction with Mr. Colvill, who had bought a hundred shares of Western Union four or five times, which took about two years to do it in.’
    “ The assertion of the plaintiff as to this employment to manage the business in his own way without interference as to the limit of the amount of stock to be bought or sold, is claimed to be a justification of the manner in which he transacted the business, whether or not it resulted in his or his principal’s loss. By an analysis of the accounts taken from the plaintiff’s books by competent evidence, the following clearly appears:—
    “The first transaction by the plaintiff in his employment took place on August 17, the date of the guaranty letter, and the last on December 27, same year. There were one hundred and seventy-eight purchases and one hundred and seventy-eight sales in one hundred and eleven days, which shows more than three operations per day. At the close of the account, on December 27, 1875, the net loss was $4,087.50, and the amount of the commissions was $4,400. This was exclusive of the margin of $1,000 given to the plaintiff at the beginning of the transaction. It also appears from the classification made that the purchases and sales effected on the same day in which the difference of price does not exceed the commissions is seventy-two. As early as the 15th of September,—less than one month from the beginning of the employment,—the net loss to that date amounted to $868.50, while the commissions charged at the same time footed up to $800, so that all' the ap-* parent loss, except $62.50, consisted of commissions.
    From the tabulated accounts—by which the account annexed to the complaint is classified, showing in detail the items of the whole, it is proven that stocks were bought in the morning and sold at the same, or nearly the same price, in the afternoon. The same thing occurred oil the following day, and the same disposition made again in a few hours without regard to the loss suffered by the principal, and the regular fee charged as commission for services. An examination of any of the intermediate dates of the account will furnish the same result. The purchases and sales always about balance each'other. The balances constantly growing against the principal, consist almost entirely of the charges for commissions.
    The plaintiff, during the time of these transactions, wholly failed to give the defendant notice and information of the exact condition and state of her account in his hands, by which she could see at any time that in the end it would prove to be an irremediable loss to her and of profit to her agent. This method of doing business pursued by the plaintiff, was condemned by all the experts examined, not only as improper but as against the usual and customary mode of doing business by brokers in such cases.
    It being clearly shown by the testimony that in this business the custom was always to give the proper notice of each transaction in detail, the plaintiff 'must be assumed to know it, and to have undertaken to perform his duty accordingly; failing to do so charges him with neglect of duty.
    As matter of fact, the referee has found that the plaintiff did not at any time communicate to her specifically what the. particular charges by way of commissions amounted to, or the fact that the majority of his transactions were effected at so small a margin of difference between the cost of the purchases and the prices realized after sales that no profit could have resulted to the defendant therefrom.
    The question is one of due diligence and ordinary skill. Whether or not one has exercised such skill and diligence is usually a question of fact. If it be the result of inattention or incapacity or of an intent to defraud, an omission in either case is equally a breach of plain duty and a grievous wrong to the principal. It is not sufficient that the plaintiff has been guilty of no fraud or of no such gross negligence as could carry with it the insignia of fraud. “The position” says Rapallo, J., in Heinemann v. Heard (N. Y. 35), “cannot be. maintained that fraud on the part of the agent is necessary to subject him to an action for neglecting to perform a duty which he has undertaken” (Story on Agency, §§ 183, 186).
    In Denew v. Deverell (3 Campbell, 451), Lord Ellenboboug-h directed the jury that if the plaintiff’s services were found to have been wholly abortive, he was entitled to recover no compensation. He gives this sensible and practical reason for the rule: “I pay an auctioneer for the exercise of his skill in my behalf which I do not myself possess, and I have a right to the exercise of such skill as is ordinarily possessed by men in that profession or businesss. If from his ignorance or carelessness he leads me into mischief he cannot ask for a recompense, although from a misplaced confidence, I followed his advice without remonstrance or suspicion.”

      Again, if the duties of a broker are executed in such a manner that no benefit results from them he is not entitled to recover either his commission or even a compensation for his trouble (Hammond v. Holliday, 1 Carr. & Payne, 384).
    We are of the opinion that the finding that the defendant acquiesced in what the plaintiff was doing and his manner of doing it cannot be sustained upon well settled principles of law ; that there can be no acquiescence in the absence of material facts which it was the plaintiff’s duty to communicate to the defendant and which duty he failed to perform.

      Anderson & Mann, for appellant,

      Crosby & Hoffman, for respondent.
   Opinion by Speir, J.; Sedgwick and Freedman, JJ., concurred.

Judgment reversed and new trial by jury ordered.


author: Freedman, J.,

text:
    HENRY A. AVERY, et al., Respondents, v. GEORGE W. FERGUSON, et al., Appellants.
    Before Sedgwick, Speir and Freedman, JJ.

      Decided April 5, 1880.
    Action to recover $493.25, the value of certain plate glass, the property of plaintiffs, which defendants converted to their own use.
    Answer denied plaintiff’s title and the conversion. The jury found for the plaintiffs in the sum of $250.00, and defendants appealed from the judgment.

      George H. Fletcher, for appellants.

      Childs & Hull, for respondents.
      I/wke A. Lockwood and JolinL. Hill, for appellants.
   Freedman, J.,

wrote for affirmance, with costs.

Sedgwick and Speir, JJ., concurred.


text:
    ROWLAND C. HAZARD, et al., Respondents, v. JOHN R. CASWELL, et al., Appellants.

      Partnership—successorship in business, and consequent right to use of old firm, name, Prade-mwrks and labels—what sufficient evidence of.

    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal from judgment enjoining the use of a certain label and trade-mark.
    The court below found that the plaintiffs were the sole successors of the firm of Caswell, Hazard & Co.
    The court, at General Term, said: “The right to use the said firm name and trade mark in question flows from such fact. There was more than a mere dissolution and division of assets. There was an actual continuance of the old business and firm name by the plaintiffs at all the established places of business, a transfer to them of the retiring, partner’s interest in whatever was characteristic of the old business, and on the part of the retiring partner for several years a clear recognition of, and acquiescence in, the mode in which the plaintiffs did continue the said business and firm name. In four receipts signed by the retiring partner, the plaintiffs are expressly styled ‘ successors to the old firm.’ These features distinguish the case at bar from Morgan v. Schuyler (21 Alb. Law J. 154). The facts being as stated, the plaintiffs had a right to bring themselves within the statute (Laws 1854, c. 400) permitting the continuance of the firm name in certain cases, and as a consequence they are, upon all the facts found, entitled to the relief awarded to them.”

      Anderson & Howland, for respondents.

       See Adams v. Adams, 7 Abb. New Cas. 293.

   Opinion by Freedman, J.; Sedgwick, J., concurred.

Judgment affirmed, with costs.


text:
    EDWIN M. NEVILLE, Appellant, v. WILLIAM . V. CHRISTIE, Respondent.
    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal from judgment dismissing complaint at the trial.

      Louis F. Murray, attorney, and George M. Curtis, of counsel, for appellant.

      Miron Winslow, attorney, for respondent.
   Freedman, J.,

wrote for affirmance, with costs; Sedgwick, J., concurred.


text:
    HENRY C. DART, Respondent, v. WRIGHT GILLIES, et al., Appellants.

      Appeal—questions of fact, how - brought up for review—entry on cleric's minutes, when deemed an order denying motion for new trial.

    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.

      This is an appeal from a judgment in favor of plaintiff, and also from an order denying defendant’s motion for a new trial made on the judge’s minutes.
    The notice of appeal in the case at bar specifies that the defendants appeal from the judgment and also from the order denying motion for new trial upon the minutes, but no formal order denying said motion was ever entered. An entry appears in the clerk’s minutes noting the fact of the denial of the motion.
    The court at General Term said : “ Defendants’ exception to the denial of the motion for a new trial upon the minutes presents no question of fact for review. The only mode for reviewing that decision upon the facts is by an appeal from the order denying the motion (Gregg v. Howe, 37 N. Y. Super. Ct. 420 ; Matthews v. Meyberg, 63 N. Y. 656). For the purpose of such an appeal it was said in Gregg n. Howe, that an order must be entered. If the entry upon the. clerk’s minutes be treated as an order, as was done in. Alfaro v. Davidson (39 N. Y Super. Ct. 463), it should! not be disturbed upon a question of fact, because no. such ground was assigned for the motion, and no mo-, tion for the direction of a verdict had been previously, madé, and also because, at the close of the trial, the. case, considered as a whole, was one which had; to.be. submitted to the jury.”

      James M. Fisk, for appellant.
    • Wingate & Oullen, attorneys, and Henry O. Andrews, of counsel, for respondent.
   Opinion by Freedmax,. «L.;, Sedgwick, J., concurred.

Judgment and order affirmed, with costs.


text:
    FRANCIS BROWN, et al., v. GEORGE S. GUNNISON.
    Before Speir and Freedman, JJ.

      Decided April 5, 1880.
    Exceptions ordered to be heard at general term.

      Tracy, Olmstead & Tracy, for plaintiff.

      Thomas F. Byrne, for defendant.
   Per Curiam.

The exceptions must be overruled and judgment absolute ordered for plaintiffs, with costs.


text:
    ELIAS M. SPERLING, Respondent, v. WILLIAM C. CONNER, Sheriff, &c., Appellant.
    Before Speir and Freedman, JJ.

      Decided April 5, 1880.
    Exceptions heard in first instance at general term.

      Vanderpoel, Green & Cuming, attorneys, Almon Goodwin, of counsel, for appellant.

      Henry A. Root, for respondent.
   Per Curiam.

Exceptions overruled and judgment ordered for the plaintiff upon the verdict, with costs.


text:
    FRANK C. OSBORN v. THE UNIVERSAL LIFE INS. CO.
    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal by defendant from, an order denying the motion to strike out certain portions of the complaint as irrelevant and redundant. The order appealed from directs that the causes of action shall be separately numbered, and from that part of the order the defendant does not appeal, but the plaintiff does.

      S. F. Kneeland, for plaintiff.

      Sewell & Pierce, for defendant.
   Per Curiam.

That part of the order from which the plaintiff appealed should be reversed, such reversal having been consented to by the defendant on the argument, and the remaining part, from which the defendant appealed, should be affirmed, with costs to the plaintiff.


text:
    ADALINE T. SMITH, Respondent, v. EZRA H. LINLEY, Appellant.
    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal from order settling case on appeal.

      Arnoux, Ritch & Woodford, for appellant.

      Randolph B. Marline, for respondent.
   Per Curiam.

The order appealed from should be affirmed, with costs.


text:
    JOHN N. WHITING, Appellant, v. BENJAMIN M. PRICE, Respondent.
    Before Curtis, Ch. J., and Speir, J.

      Decided April 5, 1880.
    Appeal from judgment.

      Swall Sergeant, attorney, and A. J. Vanderpoel, and Almon Goodwin, of counsel, for appellant.

      George J. Peet, for respondent.
   Per Curiam.

Judgment appealed from affirmed, with costs to respondent.


author: Speir, J.,

text:
    ERNEST W. TABOR, Appellant, v. WILLIAM VAN TASSELL, et al., Respondents.
    Before Sedgwick, Speir and Freedman, JJ.

      Decided May 3, 1880.
    This is an appeal by the plaintiff from a judgment and order denying a motion for a new trial on the min- . utes.
    This case involves only questions of fact.

      Vernon & Hill, for appellant.

      Hugh Reavey, for respondents.
   Speir, J.,

wrote for affirmance, with costs; Sedgwick and Freedman, JJ., concurred.


text:
    MARGARET ARCHER, Respondent, v. LOUIS LEUBUSCHER, et al., Appellants.
    Before Sedgwick, Speir and Freedman, JJ.

      Decided May 3, 1880.
    Appeal by defendants from judgment and from order denying motion for new trial.

      Wm. J. A. McGrath, for appellants.

      D. & T. McMahon, for respondent.
   Per Curiam.

Upon examination of this case, we find no reason to disturb the verdict of the jury, or any ground of complaint against the charge of the judge.

The judgment and order must be affirmed, with costs.


text:
    THOMAS DONOVAN, an Infant, &c., Appellant, v. THE BOARD OF EDUCATION, &c., Respondent.
    Before Speir and Freedman, JJ.

      Decided May 3, 1880.
    Appeal by plaintiff from judgment dismissing complaint.

      Thomas & Wilder, for appellant.

      Wm. C. Whitney, attorney, and D. J. Dean, of counsel, for respondent.
   Per Curiam.

The complaint avers injury sustained in November, 1875, by the plaintiff falling into a grating left open for the purpose of hoisting materials from the cellar in the yard of a public school building in the city of New York, in consequence of the negligence of defendant’s servants.

The answer denies the foregoing allegations.

The testimony does not connect the defendant with the repairs, custody or control of the premisés or the work which was going on when the accident occurred.

The Board of Education was not the employer or responsible superior of the persons by whose negligence the accident occurred. The case presents the facts as proven, which show that the negligent act was not a corporate or official act, or omission of a servant necessarily employed by it.

The complaint was properly dismissed, and the judgment should be affirmed, with costs.


author: Curtis, Ch. J.,

text:
    CARL J. EHBETS, Respondent, v. JOHN W. BIGELOW, Appellant.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided June 18, 1880.
    Appeal by the defendant from a judgment for plaintiff entered upon a verdict for plaintiff for $347.
    The case involves only questions of fact.

      Sedgwick & Curtis, attorneys, and George S. Sedgwick, of counsel, for appellant.

      Martin & Smith, attorneys, and M. W. Divine, of counsel, for respondent.
   Curtis, Ch. J.,

wrote for affirmance, with costs; Sedgwick and Freedman, JJ., concurred.


text:
    JAMES TALCOTT, Respondent, v. JOSEPH P. BROUNER, etal., Appellants.

      Blection of remedies—action ip vendor against assignee of vendee to replevy goods sold—effect of compromise therein—when not iar to recovery of purchase price. ,

      Before. Curtis, Ch. J., and Sedgwick and Freedman, JJ.

      Decided June 18, 1880.
    Appeal from a judgment against the defendants for $5,089.94, entered upon a verdict directed by the court, and from an order denying the defendants’ motion for a new trial upon the minutes.
    The action is brought to recover $2,907.17 for goods sold and delivered. The answer admits the sale and alleges the goods were paid for by defendants’ notes ; that the defendants failed in • business just before the notes fell due and made a general assignment to one Belding; that plaintiff rescinded the sale by bringing replevin for the goods against the defendants’ assignee ; that on the trial the notes were surrendered to the assignee and a judgment obtained against him, which was reversed on appeal; and that the plaintiff thereupon settled with the assignee and received from him a sum of money in full satisfaction for the goods. The plaintiff testified at the trial, that he had “ never received a dollar from the whole goods;” that the notes had never been paid, and “ that the goods sold had never been paid for.” The bringing of the suit in replevin by the plaintiff against the assignee, and the final judgment against the plaintiff therein, were shown at the trial of the present action.
    The court, at General Term, said: “ There having been a legal adjudication by the appellate court, adverse to the plaintiff, he was remitted to such remedy as he might have against other parties than the assignee (Kinney v. Kiernan, 49 N. Y. 169). If he was mistaken as to his having a cause of action against the latter, it does not follow that he did not have one against the present defendants. The defendants offered to show a compromise and settlement by the assignee of the plaintiff’s claim for the identical goods in suit after the reversal of the judgment by the general term. This was excluded by the court, and the defendants excepted. The offer was vague and immaterial. The assignee, as trustee, had no legal right to divert from their proper use and application the assignee’s, assets to the payment or settlement of a claim adj udged untenable as against him ; nor would the settlement of an invalid demand against the assignee conclude the plaintiff from asserting a valid claim against the defendants.”

      W. B. Putney, attorney, and Charles E. Soule, of counsel, for appellants.

      Chambers, Boughton & Prentiss, for respondent.
   Opinion by Curtis, Ch. J. ; Sedgwick and Freedman, JJ., concurred.

Judgment and order appealed from affirmed, with costs.


text:
    STEPHEN D. PRINGLE, Respondent, v. HENRY S. LEVERICH, et al., Appellants.
    Before Curtis, Ch. J., and Sedgwick, J.

      Decided June 18, 1880.
    Appeals by the defendant Leverich from orders made at the special term denying his motion for bill of particulars.
    The orders were affirmed upon the ground that the books upon which the claim in suit was founded were open to appellant’s inspection and under his control.

      Platt, Gerard & Bowers, attorneys, and J. M. Bowers, of counsel, for appellant.

      Stickney & Shephard, attorneys, and Albert Stickney, of counsel, for respondent.
   Curtis, Ch. J.,

wrote for affirmance, with costs; Sedgwick, J., concurred.


text:
    BARTHOLOMEW DESMOND, Appellant, v. ERNEST ROSE, Respondent.

      Contributory negligence—testimony susceptible of construction either for or against it not sufficient to rebut a presumption of its existence—where such diversity exists in testimony of single witness, complaint should be dismissed.

    Before Curtis, Ch. J., and Sedgwick, J.

      Decided June 18, 1880.
    Appeal from judgment.

      This action was for damages for injury caused by defendant’s negligence. Upon the plaintiff’s closing his case, the defendant moved to dismiss the complaint, on the ground that plaintiff had not given any testimony to show that he had been free from negligence. The motion was granted. By leave, the plaintiff was allowed to testify further in his own behalf. The motion was renewed, and again granted.
    The court at General Term, after a review of the evidence which tended to show contributory negligence on the part of plaintiff, said :
    “We are of the opinion that the learned judge at the trial committed no error in dismissing the complaint. The plaintiff could not make his case without proof that he was free from contributory negligence. If it were clear that the facts, on which, as matter of law, the jury must found a conclusion on this point, were susceptible of a construction that proved negligence equally with the opposite construction, much more, if the opposite construction had a greater weight of testimony, the jury would have no foundation for a judgment that there was no contributory negligence. It .is a matter of law that if one credible witness for the plaintiff testifies to a certain state of facts necessary to the cause of action, and another equally credible witness swears to the opposite,' and there is nothing to turn the scale one way or the other, the facts of the case are not proven. In such a case, however, it is generally left to the jury to say which is the more credible witness. But where the diversity exists in the testimony of one witness, such a consideration has no place.”

      A. B. Tappen, for appellant.

      A. W. Knapp, attorney, and John McKeon, of counsel, for respondent.
   Opinion by Sedgwick, J. ; Cubtis, Ch. J., concurred.


author: Sedgwick, J.,

text:
    EUGENE VON NORDHAUSEN, Appellant, v. THE NEW YORK & HARLEM R. R. Co., Respondent.
    Before Sedgwick and Fbeedman, JJ.

      Decided June 18, 1880.
    Appeal from judgment.
    This action was for damages, from negligence of defendants. After the testimony for plaintiff and for defendants had been given, the defendant’s counsel moved to dismiss the complaint, and this motion was granted.
    The court at general term affirmed the judgment, on the ground that the great preponderance of evidence was that plaintiff’s negligence contributed to the injury.

      Daily & Perry, for appellant.

      Chauncey M. Depew, attorney, and Frank Loomis, of counsel, for respondent.
   Sedgwick, J.,

wrote for affirmance, with costs ; Freedman, J., concurred.


text:
    JOSEPH NICKERSON, et al., Respondents, v. EMIL RUGER, et al., Appellants.

      Promissory note—what proof necessary for recovery on note given for accommodation or taken try fraud.

    Before Curtis, Ch. J., and Freedman, J.

      Decided June 18, 1880.
    Appeal from judgment and order denying defendants’ motion for new trial.
    The action was upon a promissory note.
    The court at General Term said: “The last trial seems to have proceeded strictly in accordance with the rule laid down by the court of appeals in 76 F. Y. 279. The defendants were allowed to show their equities, and the whole case was submitted to the jury with the instruction, in substance, that whether the note was given for accommodation or taken by fraud, the plaintiffs, before they could recover, had to show affirmatively, as part of their case, that they took the note before maturity, and that, when they took it, they took it without notice of defendants’ • equities, and either then parted with a valuable consideration on the faith of it, or agreed to part with a valuable consideration on the faith of it, and subsequently, before maturity and notice, did so.”

      G. W. Cotterell, for appellants.

      W. W. Goodrich,, for respondents.
   Opinion by Freedman, J.; Curtis, Ch. J., concurred.

Judgment and order affirmed, with costs.


text:
    WILLIAM V. BROKAW, et al., Respondents, v. ANNA A. WALTON, Appellant.
    Before Curtis, Ch. J., and Freedman, J.

      Decided June 18, 1880.
    Appeal from an order denying a. motion to set aside an inquest, and open a judgment entered thereon.

      G. B. Ely, for appellant.

      G. H. Crawford, for respondents.
   Per Curiam.

Upon the whole case no sufficient reason appears which calls for a reversal.

The order should be affirmed, with casts.


text:
    FRANCIS BROWN, et al., v. GEORGE S. GUNNISON.
    Before Curtis, Ch. J., and Sedgwick and Freedman, JJ.

      Decided June 18, 1880.
    Motion by defendant for leave to appeal to the court of appeals.

      Thomas E. Byrne, for the motion.

      C. E. Tracy, opposed.
   Per Curiam.

The papers submitted upon the defendant’s application for leave to appeal to the court of appeals, fail to show that a question of law is involved, which ought to be reviewed by the court of appeals.


text:
    LORENZO THOMASSELLI, Appellant, v. MARIETTA R. STEVENS, Respondent.
    Before Curtis, Ch. J., and Sedgwick, J.

      Decided June 18, 1880.
    Appeal from judgment.

      Wm. G. Peckham, Jr., for appellant.

      Julius J. Lyons, attorney, and John Berry, of counsel, for respondent.
   Per Curiam.

Judgment affirmed, with costs.


text:
    EDWARD P. FURLONG, Appellant, v. ROBERT GAIR, et al., Respondents.

      Pleading—false representations, how alleged—failure to allege properly, 'when waived.

    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    Appeal from judgment entered upon the report of a referee in favor of the defendants.
    The court, at G-eneral Term, after consideration of the facts, and of findings of the referee thereon, said : “As to the alleged falsity of plaintiff’s representations, the only charge made in the answer in this respect occurs in the counter-claim, wherein defendants aver that by reason of plaintiff’s ‘ said false representations ’ they suffered damage, &c. This averment refers to certain representations set forth in a preceding defense, but the said representations were not then and there, nor are they in any other part of the answer, described as having been false. If, therefore, the testimony given upon the trial in support of the theory involving the falsity of the representations as the foundation of the counter-claim, had been duly objected and excepted to, the finding of the referee that they were false, and that, by reason of such false representations, the defendants suffered damage in the sum of $142.46, could not be sustained in the present state of the pleadings. The testimony came in, however, without objection; and the question of falsity seems to have been litigated upon it as though the issue had been fully made by the pleadings. Under these circumstances the review to be made, if any were necessary, would have to be confined to the sufficiency of the evidence. But this has been rendered unnecessary by the finding that the contract, as found, was terminated by notice. Upon such termination, the -defendants became entitled to an accounting ; and in the course of that the sum of $142.46 is to be .allowed to them for advances and expenses in excess of profits, even if they should not be entitled to recover it as damages for false representations. The question of falsity is not one, ^therefore, which affects the result, so far as the amount is concerned.”

      Truman H. Baldwin, attorney, and Charles W. Hassler, of counsel, for appellant.

      Arthur, Phelps, Knevals & Ransom, for respondents.
   Opinion by Freedman, J. ; Sedgwick, Oh. J., concurred.

Judgment modified by deducting therefrom $269.83 erroneously allowed defendants for profits subsequent to their rescission of the contract with plaintiff, and by making recovery of defendants dependent upon a reassignment of their interest in the patents, and, as thus modified, affirmed, without costs to either party on this appeal.


text:
    EDWIN WILEY, Appellant, v. ANTHONY ARNOUX, et al., Respondents.

      Security for costs by non-resident—Code Civil Procedure not applicable to order for, made beforeits passage.

    Before Speir and Russell, JJ.

      Decided November 22, 1880.
    Appeal from an order directing the plaintiff to file security" for costs.
    The plaintiff is a resident of Brooklyn. The order appealed from was made April 13, 1880.
    The court at General Term said: “In the case of Lewis v. Farrell, decided at this term of the court, it was held that before the additional chapters of the new Code went into operation, it was necessary for a plaintiff residing in another county bringing an action in this court, to file security for costs, but that the Code, as amended, had changed the law on this subject. The order appealed from was made before the change in the law occurred. It was correct as the law then was, and should be affirmed.” '

      Herbert K. Cruikshank, for appellant.

      John A. Foster, for respondents.

        Ante, p. 358.

   Opinion by Russell, J. ; Speir, J., concurred.

Order affirmed, with costs and disbursements.


text:
    DAVID HARRISON, et al., Appellants, v. HENRY NEWMAN and BERNARD REILLY, as Sheriff, &c., Respondents.
    Before Sedgwick, Ch. J., Speir and Russell, JJ.

      Decided November 22, 1880.

      This is an appeal from a judgment for the defendants entered upon the verdict of a jury, from an order denying a new trial, and from an order for an allowance.
    The case involved mainly questions of fact.

      McDaniel & Souther, attorneys, and Everitt P. Wheeler, of counsel, for appellants.

      Vanderpoel, Green & Cuming, attorneys, and Almon Goodwin, of counsel, for respondent Reilly.

      George W. Galinger, attorney, for respondent Newman.
   Per Curiam.

Judgment and order appealed from affirmed, with costs.


text:
    WILLIAM B. NEWBERRY, et al., Appellants, v. MICHAEL W. WALL, Respondent.
    Before Sedgwick, Ch. J., Speir and Russell, JJ.

      Decided December 22, 1880.
    This is an appeal from a judgment entered upon a dismissal of the complaint at the trial term. The cause had been tried once before, and is reported in 35 Super. Ct. 106. At that trial the case was also dismissed. The general term affirmed the court below, and from that decision the plaintiffs appealed to the court of appeals, where the judgment was affirmed (65 N. Y. 484).

      Henry Whittaker, attorney, and F. R. Coudert, of counsel, for appellant.

      Huntley & Bowen, for respondent.
   Per Curiam.

Judgment affirmed, with costs.


text:
    MIGUEL DE ALDAMA, Appellant, v. FRANCIS F. LASALA, Respondent.
    Before Sedgwick, Ch. J., Speir and Russell, JJ.

      Decided November 22, 1830.
    This is an appeal from a judgment, entered upon the report of a referee, in favor of the defendant, and involves only questions of fact.

      Horace Secor, Jr., for appellant.

      Starr & Hooker, for respondent.
   Per Curiam.

Judgment affirmed, with costs.


text:
    JOHN CAWLEY v. EUGENE KETELTAS, et al., Exrs., &c.
    Before Sedgwick, Ch. J., and Russell, J.

      Decided November 22, 1880.
    Verdict directed for plaintiff, exceptions to be heard in the first instance at general term.

      Kelly & Macrae, for plaintiff.

      Henry W. Clark and Richard W. Stevenson, for defendants.
   Per Curiam.

Judgment reversed, with costs of appeal to appellant to abide event.


text:
    AMES H. CHAMBERS, Appellant, v. WILLIAM A. APPLETON, et al., Respondents.
    Before Sedgwick, Ch. J., and Russell, J.

      Decided November 22, 1880.
    Appeal by plaintiff from order of reference.

      Wm. W. Badger, attorney, and Wm. R. Beach, of counsel, for appellants.

      Douglas Campbell, for respondent.
   Per Curiam.

Order affirmed, with ten dollars costs and disbursements.


author: Sedgwick, Ch. J.,

text:
    PATRICK SHEAHAN, Appellant, v. THE NATIONAL S. S. Co., Respondent.
    Before Sedgwick, Ch. J., Speir and Russell, JJ.,

      Decided December 6, 1880.
    Appeal from judgment in favor of defendant, entered on report of referee.
    The case involves only questions of fact.

      D. & T. McMahon, for appellant.

      John Chetwood, for respondent.
   Sedgwick, Ch. J.,

wrote for affirmance, with costs; Speie and Russell, JJ., concurred.


text:
    GEORGE W. WELD, et al., Respondents, v. BERNARD REILLY, Sheriff, &c., Appellant.
    Before Sedgwick, Ch. J., and Speir and Freedman, JJ.

      Decided December 6, 1880.
    Appeal from judgment and order denying motion for new trial on the minutes.

      Vanderpoel, Green & Cuming, attorneys, and John Yard and Almon Goodwin, of counsel, for appellant.

      Stickney & Shepard, for respondents.
   Speir, J.,

wrote for reversal of judgment and order, with costs ; Sedgwick, Ch. J., concurred in result.


text:
    COMPTON, Respondent, v. COMPTON, Appellant.

      Calendar practice—divorce.

    Before Sedgwick, Ch. J., and Speir, J.

      Decided December 6, 1880.
    In this action for the dissolution of the marriage contract on the ground of adultery, the cause was noticed for the special term and was put on the calendar for trial. When the case was called in its order upon the calendar, an application by the defendant was made to have the issues of adultery tried by a jury. The court granted the order under section 970 of the Code, and specified the issues to be tried. The order was made on the 18th of October, and directed that the cause be set down for trial on the 25th.of October, upon the day calendar of that day, in part 3, trial term, of this court, without further application.
    The appeal is from that part of the order fixing the time and place for trial.
    The court, at General Term, said: ‘‘The order having been made by the court after the issues had been settled and the case on the calendar by notice, the court, we think, was invested with full authority for the trial of the cause. The disposition of the whole case was placed in the discretion and judgment of the trial judge, who had it in his power, at the time when the cause was called, to hear the issues of law either before or after the issues of fact had been determined, depending upon the situation and convenience of the parties. The case of Leslie v. Leslie (11 Abb. Pr. N. S. 311), is not in point, as no issues had been settled when the motion there was made to put the case on the calendar for trial.”

      Richard S. Newcombe, attorney, and Albert Cardozo, of counsel, for appellant.

      Maclay & Mudge, attorneys, and Wm. A. Beach, of counsel, for respondent.
   Opinion by Speir, J.; Sedgwick, Ch. J., concurred.

Order affirmed, with $10 costs.


text:
    ADOLPH QUETTING, Appellant, v. THE DRY DOCK, &c., R. R. CO., Respondent.
    Before Sedgwick, Ch. J., Speir and Russell, JJ..

      Decided December 6, 1880.
    Appeal from a judgment entered upon a verdict of the jury, and from an order denying a motion for a new trial on the minutes.

      A. H. Stoiber, attorney, and T. H. Smith, of counsel, for appellant.

      Robinson & Scribner, for respondent.
   Per Curiam.

We see no ground, upon an examination of the evidence and the exceptions in this case, for interference with the verdict of the jury.

The judgment and the order appealed from must be affirmed, with costs.


text:
    ABRAHAM DE BEVOISE, et al., Respondents, v. THE PROVIDENCE & STONINGTON S. S. Co., Appellant.
    Before Sedgwick, Ch. J., Speir and Russell, JJ.

      Decided December 6, 1880.
    Appeal from judgment and from order denying motion for new trial on the minutes.

      Wm. P. Dixon, attorney, and Wheeler H. Peckham, of counsel, for appellant.

      Edwin Kempton, for respondent.
   Per Curiam.

We find that no errors were committed on the trial, and that the verdict is fully sustained by the evidence.

The judgment and order appealed from is affirmed, with costs.