text:
    JOHN PETER EISENLORD, Appellant, v. DAVID H. CLUM, CATHERINE L. EISENLORD and Others, Respondents.

      Verdict directed by the court — disputed questions of fact — invasion of the province of the jury.

    A trial court has no authority to interpose and take a case from the jury ky directing a verdict, when there is a substantial dispute on a question of fact which affects the merits of the controversy, either arising out of a conflict of testimony or a doubt as to the credibility of witnesses.
    Appeal by the plaintiff, John Peter Eisenlord, from a judgment of the Supreme Court, entered in the office of the clerk of Montgomery county on the 28th day of September, 1891, upon the verdict of a jury in favor of the defendants, rendered by direction of the court at circuit.

      William J. JByam and A. J. Abbott, for the appellant.

      George W. Smith, for the respondents.
   Mayham, P. J.:

The plaintiff prosecutes this action to recover the possession of certain lands of which Peter 0. Eisenlord died seized and intestate, on tbe ground that be is tbe only son and beir-at-law of tbe intestate, tbe lands in dispute being in possession of tbe defendants wbo claims title as beirs-at-law of the deceased.

• Tbe plaintiff claims as the legitimate son of tbe deceased; tbe defendants claim as-brothers and sisters of tbe deceased, and tbe principal question involved in controversy is as to tbe legitimacy of tbe plaintiff.

The contention of tbe plaintiff is that, Peter 0. Eisenlord was in June, 1857, duly and lawfully married to Margaret Lipe, and that he is tbe legitimate issue of that marriage and tbe sole surviving child of Peter 0. Eisenlord, and as such, in law, inherits bis property.

On the other band tbe contention of tbe defendants is, that -Peter O. Eisenlord was- never married, and- that be died intestate without lawful issue him surviving, and that they, as bis next of kin and beirs-at-law, inherit bis property.

If tbe plaintiff’s contention was right, then be was entitled to a verdict and judgment for the possession of tbe land in dispute.

If tbe defendant’s contention was correct, then tbe plaintiff bad no right to tbe land, and tbe defendants were entitled to a verdict and judgment in their favor.

Tbe determination of this controverted question was-a fact to be found by tbe jury, unless tbe evidence was so overwhelming in favor of one theory and against tbe other as to present only a question of law for tbe court.

Tbe theory of our jurisprudence is that disputed questions of fact, in actions at law, must be tried and determined by a jury, and that right is guaranteed to parties by tbe provisions of the fundamental law of the land by which courts as well as legislators are to be governed. It is true that courts may, when by tbe evidence there is no substantially disputed question of fact beween tbe parties, direct a verdict, or when a verdict has been rendered and tbe court can see that the weight of evidence is so overwhelming against it as to evince prejudice or passion on the part of tbe jury, tbe court may set their verdict aside.

But this rule does not, I think, authorize tbe court to invade tbe province of tbe jury and weigh tbe disputed facts, and tbe evidence to support such dispute by its standard, and if, in its opinion, tbe jury reach a wrong conclusion, set aside a verdict for that reason.

Nor should, the court interpose and take a case from the jury by directing a verdict, when there is a substantial dispute on a question of fact which affects the merits of the controversy either arising out of conflict of testimony, or a doubt as to the credibility of witnesses. (Kavanagh v. Wilson, 70 N. Y., 177; Gildersleeve v. Landon, 73 id., 609 ; Nicholson v. Conner, 8 Daly, 212; Elwood v. Tel. Co., 45 N. Y., 554; Wait v. Agricultural Ins. Co., 13 Hun, 371.)

Tested by the elementary principle underlying our judicial system, and by the rule established by these cases, and many others that might be cited, we think that there were disputed questions of fact in this case which should have been submitted to the jury.

There was positive evidence of marriage by direct proof of the fact, and the admission of the deceased; and while, perhaps, this evidence was open to criticism and' doubt, that doubt, we think, should have been solved by the jury.

On the other hand, there were strong circumstances in evidence bearing upon the credibility of some of the" plaintiff’s witnesses, and the truth of their testimony, as well as circumstances tending to prove the improbability of the marriage which should, Ave think, have been submitted to, and passed upon by the jury.

Hpon these disputed and controverted questions in this ease, we doubt whether the court would have felt authorized to have set aside the verdict under the rules we have stated, by which courts are governed in setting aside verdicts, if the same had been either for the plaintiff or defendant.

We think the court erred in directing a verdict, and in not submitting the question to the jury, and that for that reason the judgment should be reversed.

PutNAM and HeeRioK, JJ., concurred.

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


source: Caselaw Access Project

author: Putnam, J.:

license: Public Domain

text:
    LOUISA S. ADAMS, Respondent, v. ANTHONY N. BRADY, as Administrator, etc., of JAMES N. BRADY, Deceased, Appellant.

      Disputed claim against a decedent’s estate — reference by consent under the statute — waiver of a trial by jury.

    A reference -under the statute (3 R. S., 88, 89, §§ 36 and SI), by consent, of a disputed claim against a decedent’s estate, is a waiver of a trial by jury, and this is so although the consent is to a reference to a particular referee; and the controversy may thereafter be treated in the same manner as a case in which the court could direct a reference without consent, and the court may, upon setting aside the . report of the referee, appoint another referee in his place.
    Appeal by tbe defendant, Anthony N. Brady, as administrator, ■etc., of James N. Brady, deceased, from an order of the Columbia County Special Term, entered in the office of the clerk of Albany county on the 10th day of October, 1892, setting aside the report •of a referee on a reference by consent, under the statute, of a disputed claim against the said decedent’s estate, and granting a new trial before another referee, who was thereby appointed sole referee to hear and determine the matters in controversy.

      Andrew Hamilton, for the appellant.

      Alden Chester, for the respondent.
   Putnam, J.:

Plaintiff having presented a claim against the estate of James N. Brady, deceased, which was rejected by defendant, as administrator •of the deceased, served on the latter a written offer to refer said claim pursuant to the statute. The offer being accepted by defendant, and the parties, by another writing, having agreed on a reference to John T. Cook, and the surrogate of Albany county having duly approved of said referee, on filing said agreement to refer, and the approval of the surrogate, in the county clerk’s office df said county, an order entitled in the Supreme Court referring the matter as to said claim to said Cook was entered.

The cause was afterwards tried before said referee, who found in favor of the claimant. A motion made by plaintiff at Special Term to confirm said report, and for judgment in favor of plaintiff, with costs, was denied, and the report set aside on the ground that the referee had improperly stricken out evidence received on the trial after the final submission of the case. The referee was discharged and a new trial granted before TIon. "William L. Learned, who, by said order, was appointed sole referee to hear and determine the matter in controversy between said parties. Defendant objected to the appointment of a new referee and gave notice that he elected to end the reference and claimed a jury trial. It is now claimed by appellant that that portion of the order appointing a new referee is unauthorized. That the case is one where the plaintiff is entitled to a trial by jury, and that by consenting to a reference to a particular referee he did not waive his right to a jury trial, said reference having fallen through. (Preston v. Morrow et al., 66 N. Y., 452.)

The General Term of this district, in Masten v. Budington (18 Hun, 105), determined that the doctrine laid down in “ Preston v. Morrow et al.” does not apply where there is a reference under the statute by consent of a claim against a deceased party, and that such consent is a waiver of a trial by jury. In the case last cited the provisions of 2 Revised Statutes (88, 89, §§ 36, 37), which remain in force, are considered, and the court held that after a controversy as to a claim against a deceased party had been referred by consent, pursuant to the above-quoted provisions of the Revised Statutes, it •may be treated in the same manner as a case in which the court could direct a reference without consent. That said section 37 of the statute provides that, upon setting aside the report of a referee, another referee may be appointed by the court in his place. (See 2 R. S., 88, 89, §§ 36, 37; 3 Rumsey’s Dr., 298; Roe v. Boyle et al., 81 N. Y., 308.)

I think we are concluded by the decision of the General Term of this district in “ Masten v. Budington,” which seems decisive of the question under consideration, and hence that the order should be affirmed, with costs.

"M"avttaM, P. J., and Heebice, J., concurred.

Order affirmed, with costs.


author: PutNah, J.: ■

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARK DUNTZ, Appellant, v. SARAH V. COON, Superintendent of the House of Refuge for Women, at Hudson, New York, Respondent.

      House of refuge for the punishment and reformation of women between the ages of fifteen and thirty — constitutionality of the statute creating it.

    Chapter 187 of the Laws of 1881, as amended by chapter 17 of the Laws of 1887, “An act for the establishment of a house of refuge for women,” is not open to the objection that it prevents the governor of the State from’exercising the constitutional power of pardon as to persons committed under it.
    In the absence of an express provision in a statute interfering with the power of pardon conferred upon the governor by the Constitution, the court should not, by a forced and strained construction, hold that the statute deprives him of such prerogative.
    Nor is such act repugnant to the prohibition of the fourteenth amendment to the Federal Constitution against legislation by the States denying to any persons the equal protection of the laws, in that it provides for women between the ages of fifteen and thirty, guilty of a misdemeanor, a punishment different in place and period from that prescribed by law for persons of a different age.
    Appeal by tbe relator, Mark Duntz, from an order of tbe county judge of Columbia county, made on tbe 6tb day of April, 1892, dismissing tbe proceeding and remanding tbe prisoner, one Nelbe Yictory, to tbe custody of tbe superintendent of tbe House of Refuge for Women, in a proceeding by habeas corpus.

      Ma/rh Duntz, for the appellant.

      Albert Hoysradt, for tbe respondent.
   PutNah, J.: ■

Appeal from an order of tbe Columbia county judge dismissing proceedings by habeas corpus and remanding one Nellie Yictory on whose behalf tbe writ was obtained to tbe custody of Sarah Y. Coon, tbe Superintendent of tbe House of Refuge for Women, at tbe city of Hudson.

Nellie Yictory was, on tbe 19th day of November, 1887, brought before A. R. Rruce, a justice of Johnstown, N. Y., charged with being a common prostitute, and having been duly convicted, and said justice having determined her age to be seventeen years, committed ber to tbe said House of Eefuge as a common prostitute by virtue of tbe provisions of chapter 187 of tbe Laws of 1881, as amended by chapter 17 of tbe Laws of 1887.

I think the county judge reached tbe correct conclusion on all tbe questions submitted to him and bis opinion renders it unnecessary to write, except briefly, upon tbe question as to the constitutionality of tbe above-mentioned act of tbe legislature, which was not questioned or considered below.

In considering this question we should bear in mind tbe well-settled principle that “ every statute is presumed to be constitutional and every intendment is in favor of its validity. "When- a statute is challenged as in conflict with tbe fundamental law, a clear and substantial conflict must be found to exist to justify its condemnation.” (Matter of N. Y. E. R. R. Co., 70 N. Y., 342; People ex rel. Bolton et al. v. Albertson, 55 id., 54.)

Construing tbe act under consideration, as required by above-cited and kindred cases, I am unable to see that its enactments are in violation of either tbe State or National Constitutions.

Tbe relator claims that said statute conflicts with tbe Constitution of tbe State, because it prevents tbe governor from exercising tbe constitutional power of pardon as to persons committed to tbe bouse of refuge under its provisions. I think tbe position is founded on a mistaken construction of tbe statute and am unable to discover that it interferes or attempts to interfere with tbe pardoning power of tbe governor. It neither takes away such prerogative, expressly or impliedly. In tbe absence of any express provision in the law interfering with tbe power of pardon conferred on tbe governor by tbe Constitution we should not, by a forced and strained construction, bold that the statute deprived him of such prerogative.

Tbe relator also claims that tbe act in question violates tbe provisions of tbe fourteenth amendment to the Federal Constitution, which provides that “no State shall make or enforce any law, nor deny to any persons within its jurisdiction, the equal protection of its lawsthat tbe said statute imposes an imprisonment of five years on a certain class of females for a misdemeanor, while tbe punishment for all other females, except such class, for the same offense, is imprisonment for one year, or a fine or both.

The bouse of refuge which tbe act creates is rather a reformatory than a prison, and all females in the State of the age stated, are subject to the provisions of the law. Every woman between fifteen and thirty, guilty of a misdemeanor, is liable to the punishment provided therein. I think it within the power of the legislature to provide a punishment for children and young women at a different place and for a different period, than the imprisonment provided for persons of a different age for the same offense.

It has never been suggested that section 'TOO of the Penal Code, providing that persons between sixteen and thirty years of age, committing a felony, may be sent to the reformatory at Elmira, was unconstitutional; yet, under that section, a person twenty-nine years old may be sent to the reformatory, and, perhaps, be discharged within a year, while a man thirty years of age, convicted of the same crime, must gó to State’s prison and remain for the period of his sentence — perhaps over ten years. Under a former statute, a person under sixteen years of age, convicted of a misdemeanor, could be sent to the house of refuge in the city of New York. It was not necessary to specify in the commitment the time of their imprisonment, as male prisoners were, under the law, to be detained until their majority, and female until they reached the age of eighteen years. (See People v. Degnen, 54 Barb., 105; Park v. The People, 1 Lans., 263.)

It was never claimed that this statute was repugnant to the Federal Constitution, although, in cases of misdemeanors, the ordinary punishment was six months’ imprisonment, while under the statute in question, a boy convicted of a misdemeanor was held five years or more. In cases of a felony under said statute, the detention of a person in the house of refuge would often exceed the ordinary period of imprisonment of one of mature years for the same crime in State’s prison.

The statute under consideration does not violate the provisions of the Federal Constitution to which appellant calls our attention, because it applies equally to all females between the ages of fifteen and thirty convicted of a misdemeanor. As all of the age stated are subject to its provisions it does not have the effect of denying to any person the equal protection of the law. Also the house of refuge created by the act being a reformatory, not a State prison, the legislature may legally provide for the sending of young persons to sticb an institution with a view to tbeir reformation. The power of the legislature to prescribe different places of detention and different periods of confinement for criminals of different ages committing tbe same crime bas been too long exercised to be now questioned.

It has been determined that the legislature may prescribe a different punishment for the same crime in different localities of the State. In Matter of Bayard (25 Hun, 546) it was held that, although the legislature has established a general maximum punishment throughout the State for crime it may change or increase the punishment as to particular localities. The law construed in that case provided that a person convicted of a petit larceny in the city of Cohoes should be punished by a fine not exceeding $250, or by imprisonment in the Albany Penitentiary for a term not exceeding one year or both, and said law was held not unconstitutional, although the statute applicable to other parts of the State punished petit larceny by a fine not exceeding $100, or by imprisonment not exceeding six months or both. But thejstatute applied to all citizens of the State who might be found "guilty of petit larceny in Cohoes. (See, also, Williams v. The People, 24 N. Y., 407.)

' So, I think, the legislature may prescribe a different punishment for different ages as well as different places of confinement and for the purpose of reforming as well as punishing may provide for the imprisonment of young women in the reformatory for a longer period than that prescribed by statute for older women committing the same offense in State prison.

The order should be affirmed, with costs.

Mayham, P. J"., and Heerioe, J., concurred.

Order affirmed, with costs.


author: LANSING, Surrogate:

text:
    In the Matter of the Probate of the Will of WILLIAM H. GREEN, Deceased.

      Will — undue influence — burden of 'proof — affection —gratitude—family relations— circumstantial evidence — later will overthrown by an ea/rlier will— knowledge of contents of will — declarations of a testator prior and subsequent to the making of his will — change of testamenta/ry intention fmoi’áble to the heirs.

    The burden of proving that a will offered for prohate was obtained by fraud, duress and undue influence, is ordinarily upon the party who makes the allegation.
    The general rule is that the influence that will avoid a will as undue must amount to moral coercion, restraining independent action and destroying free agency, or the importunity must be such as to constrain the testator to do that which is against his desire.
    The undue influence which deprives a testator of the free exercise of his will must be exercised in respect to the very act.
    It is not sufficient, for the purpose of establishing undue influence, to show that the will is the result of affection and gratitude, or the persuasion which a friend or relative may legitimately use.
    Courts will hesitate to find that undue influence has been practiced, when the will is fair and reasonable, according to common instincts of mankind, and is such as might with propriety and justice have been made by the decedent.
    In the absence of evidence of force, threats or coercion, the exercise of an influence springing from family relations, or from motives of duty, affection and gratitude, cannot be regarded as undue.
    The proof of undue influence need not be direct; it may be shown by circumstantial evidence, such as sinister conduct attending the execution of the will, mental weakness of the testator, want of harmony of the will with the testator’s general intentions; to which may be added interest and opportunity, although the last two are not alone sufficient.
    When a later will is sought to be established to overthrow a prior one, the earlier will being made when the testator was in good health and under circumstances of deliberation, and the later when he was in feeble health and exposed to undue influence, and its provisions hostile to the provisions of the former, the prior will must prevail unless the later will is (so proven as to satisfy the judgment and conscience of the court that it speaks the deliberate intention of the testator. This, however, is subject to the general rule as to burden of proof, when fraud and undue influence is the sole and distinct issue in the case.
    In ordinary cases the formal execution of the will by a person who can read and write imports a knowledge of its contents. But in a case' where a will is prepared or procured by one interested in its provisions, the proponent must go further and not only show soundness of mind, but actual knowledge by the testator of the contents of the will, and that he was at the time under no undue or improper restraint of volition.

      Where, however, it appears that the testator was of sound mind and clearly understood the provisions and contents of the will, and appeared to he at that time-under no undue influence, the burden which the law casts upon the contestant, who alleges fraud and undue influence returns, and it remains with him to estab lish his defense.
    The fact of fraud or undue influence cannot be proved by the declarations of the testator prior or subsequent to the making of the will, but such declarations are-admissible when they denote the mental status or mental facts in issue.
    It is always open to inquiry whether undue influence in any case operates to produce the will, and the conduct and declarations of the testator are entitled to-more or less weight, whether made before or subsequent to the making of the-will, depending somewhat on the circumstances of each particular case.
    Subsequent declarations are competent when made so near the time of the execution of the will that a reasonable conclusion may be drawn as to the state of mind of the testator at the time the will was executed.
    The law presumes that a testator of sound mind and free volition will, in general,, bestow his goods upon the next of kin, and will not disinherit his heir.
    A change of testamentary intention, however sudden, which results in giving the inheritance to the heir, is not even ground for serious suspicion when the change follows a reconciliation after estrangement, especially when the reconciliation is stripped of sinister appearance even by reason of the first advance proceeding from the testator.
    Appeal by Eugene E. Barnes and Albert C. Barnes, executors named in a paper, dated July 2, 1888, and in a paper dated July 2, 1890, alleged to be the last will and testament and codicil thereto of "William H. Green, deceased, and by Emma C. Green, a legatee thereunder, from a decree of the surrogate of Rensselaer county, entered on the 9th day of March, 1892, admitting to probate as the-last will and testament of William H. Green, deceased, a paper dated July 22, 1890.
    The testator died August 11, 1890. This proceeding was begun August 14, 1890, by the presentation of a petition to the surrogate of Rensselaer county by Eugene F. Barnes and Albert 0. Barnes, praying for the probate, as the last will and testament of said deceased, of the said instrument, dated July 2, 1888, and the codicil thereto, dated July 2,1890. A citation was thereupon issued to the parties interested, returnable September 2, 1890. Upon the last-mentioned day objections were filed by Georgianna R. Green, the half-sister of the deceased, against the instruments then propounded by the Messrs. Barnes, as the last will and codicil of deceased, alleging that the same were not the last will and testament of the deceased,. and she, at tbe same time, offered for probate, as the will of the • deceased, the instrument in question, dated July 22, 1890, in which she was designated as co-executrix, with one George S. Shilton.
    Allegations were forthwith filed against the probate of the latter-instrument by Emma 0. Green, a residuary legatee under the instrument ~of July 2, 1888. These allegations charged, among other-things, that the purported will of July 22,1890, propounded by Georgi-anna R. Green, was obtained by the fraud and undue influence practiced by her over the testator, and that it was not and is not the testator’s free and voluntary act.
    The proceedings for the probate of these several instruments were thereupon consolidated, by direction of the surrogate, and one trial was had upon the several issues which resulted in the decree now-appealed from.

      Henry A. King and Edward Gowni^yman, for the executors, appellants.

      Charles E. Patterson, for the respondent!
    Affirmed on the opinion of the surrogate.
    Mayham, P. J., IíeReick, and PutNAM, JJ., concurred.
   The opinion of the surrogate is as follows:

LANSING, Surrogate:

Robert Green, father of the testator, a prominent business man and an old resident of the city of Troy, died in 1876, leaving a. widow and two children. He was twice married. Py his first wife* he had a son, the testator. The only surviving child of the second marriage was a daughter, Georgianna R. Green, born some ten years after her brother. He was about forty-eight years of age at the time of his death.

The property which William H. Green owned at the time of his death was derived principally from his father. It consisted of one-half interest in two brick stores in Troy, and a three-story brick building in Brooklyn, and certain stocks and bonds, and a collection of pictures, coins and books, all of the value of about $40,000.

After the death of Robert Green, his widow and his two children continued to live together. Mrs. Green became an invalid, and after being confined to the house for several years, and to her bed for months, died in November, 1888. Neither William H. nor his .'sister ever married.

William IT. Green continued to reside at Troy until his death, which occurred August 11, 1890, at Patchogue, L. I., where he was temporarily sojourning.

Among his relatives, besides his sister, testator had three cousins, Tesiding at Troy, children of Mrs. Kate Green and William H. Green (his father’s brother), viz., Misses Mamie, Sarah and Emma Green, and six second cousins in Brooklyn, children of a cousin of his father, viz., Eugene F. and Albert C. Barnes, and their four sisters, Misses Emma and Angie Barnes, Mrs. Bobbins and Mrs. Wykoff, who are the beneficiaries under the will of July 2, 1888. He had also four cousins, the children of his mother’s brother, residing at Peekskill, N. Y. who, with his sister, were the beneficiaries under the last will of July 22, 1890.

The testator was an invalid for some time prior to his death. He was suffering from brights disease, and an irregular action of the heart. This heart trouble had been chronic for years and made him an invalid, subject to frequent attacks which prostrated him for days and weeks at a time. He was undersized and quite deformed.

After the death of his stepmother William IT. Green continued to live with his sister until May 1, 1889, when he took apartments -on Third street in the city of Troy. On the 1st of May, 1890, he went to the house of his aunt, Mrs. Kate Green, No. 5 Union place, where his cousins, the Misses Mamie, Emma and Sarah resided with ■their mother. He remained there until June 15, 1890, when he went to Brooklyn to visit the Barnes’ where he remained until July 9, 1890, when he went to Brighton Beach, Coney Island, in special charge of a nurse, one Peter Fitzharris. He was at that time quite ill. The Barnes visited him there until July 13, 1890. At that time his sister, Georgianna R., in response to his invitation arrived. On the 22d day of July, 1890, the will presented by her for probate was drawn by William II. Hollister, Jr., of Troy, her lawyer, but a mutual acquaintance, and one who had transacted business for both on a previous occasion. July twenty-fourth, William H. Green and his sister, accompanied by the nurse, left Brighton Beach and went to Patchogue, a place forty or fifty miles distant, at which place he died August 11, 1890.

By the will of July 2, 1888, presented by Eugene F. and Albert C. Barnes, the testator devised the River street. property to Miss Mamie Green, the Brooklyn dwelling to Miss Emma Barnes for life, the remainder to her sister Miss Angie Barnes. By this will also he gave to his half sister, Georgianna R. Green, a legacy of sixty-two dollars and fifty cents, and named the Misses Emma and Angie Barnes, Emma and Sarah Green as residuary legatees.

By the codicil to his will, executed July 2, 1890, he gave a legacy of $200 to Mrs. "YVykoff, formerly Miss Barnes, revoked a legacy to a cousin on his mother’s side, and gave a legacy in lieu thereof to her sister, He also gave directions as to his own funeral and interment.

By the instrument offered for probate as the will of testator, dated July 22, 1890, he gives, with the exception of $500 each, to four cousins, daughters of John Hyatt, his entire property to his sister, Georgianna R. Green.

The application for the proof of these several wills was consolidated and the matters heard together. The proponent of the latter will contested the probate of the first will upon the ground that the testator, by his will of July twenty-second, had revoked the former will. The proponents of the first will contested the probate of the last will upon the ground that the last will was not the will of testator, but was obtained by fraud, duress or undue influence of his sister Georgianna R. Green, the proponent and principal beneficiary.

The sole question to be decided upon this hearing is, was this will of July twenty-second obtained by fraud, duress and undue influence ?

Upon this question the burden of proof is ordinarily upon the party who makes the allegation. (Tyler v. Gardiner, 35 N. Y., 559 ; Baldwin v. Parker, 99 Mass., 79-85; In Matter of Will of Martin, 98 N. Y., 196.)

The general rule is that the influence that will avoid a will as undue must amount to moral coercion restraining independent action and destroying free agency, or the importunity must be such as to constrain the testator to do that which is against his desire. The influence which deprives a testator of the free exercise of his will must be exercised in respect to the very act. It is not sufficient for the purpose of establishing undue influence to show that the will is the result of affection and gratitude or the persuasion which a friend or relative may legitimately use. Courts will hesitate to find that undue influence has been practiced when'the will is fair and reasonable according to common instincts of mankind and is such as might, with propriety and justice, have been made by the decedent. In the absence of evidence of force, threats or coercion the exercise of an influence springing from family relations or from motives of duty, affection and gratitude cannot be regarded as pndue.

But the proof of undue influence need not be direct; it may be shown by circumstantial evidence, such as sinister conduct, attending the execution of the will, mental weakness of the testator, want of harmony of the will with the testator’s general intentions, to which may be added interest and opportunity, although the last two are not alone sufficient. (Coit v. Patchen, 77 N. Y., 539 ; Children's Aid Society v. Loveridge, 70 id., 394; Jarman on Wills, 36.)

And it is further held, as a rule of evidence, when a later wull is sought to be established to overthrow a prior one, the eaidier will being made when the testator was in health and under circumstances of deliberation and the later when he was in feeble health and exposed to undue influence and its provisions hostile to the provisions of the former, the prior will must prevail, unless the latter will is so proven as to satisfy the judgment and conscience of the court that it speaks the deliberate intention of the testator. This, however, is subject to the general rule, as to burden of proof, when fraud and undue influence is the sole and distinct issue in the case. (Tyler v. Gardiner, supra ; Phipps v. Van Kleeck, 22 Hun, 541-546.)

In ordinary cases the formal execution of the will by a person who can read and write imports a knowledge of its contents. But in a case where a will is prepared or procured by one interested in its provisions, the proponent must go further and not only show soundness of mind, but actual knowledge by the testator of the contents of the will, and that he was at that time under no undue or improper restraint of volition. But where it appears that the testator was of sound mind and clearly understood the provisions and contents of the will, and appeared to be at that time under no undue influence, the burden which the law casts upon the contestant who alleges fraud and undue influence returns and remains with him to establish his defense. (Baldwin v. Parker, supra ; Tyler v. Gardiner, supra ; Boyse v. Rossborough, 6 H. L. Cases, p. * 49.)

In the last case the Lord Chancellor says: “ "Where once it has been proved that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it; undue influence cannot be presumed ”

In the case of the last will which was drawn by Mr. Hollister, the formal execution of the will was not only satisfactorily proven, but it appeared that the testator dictated the will, paragraph by paragraph, to the draughtsman, in the absence of his sister; and when the will was executed, in the presence of three witnesses, including Mr. Hol-lister, it was read to him, and he also read the will himself in their presence, and, after reading it, said it was right, signed it, declared it to be his last will and testament, and requested the witnesses who were present to sign it as such. Although he was at that time sick, yet his health was considerably improved, so much so that he sat up during a portion of the time in a chair, and within two or three days thereafter traveled a distance of forty or fifty miles on the cars to Patchogue, retaining sufficient strength, after his arrival there, to spend the next day but one after his arrival, and several days thereafter, upon the hotel piazza, walking about unassisted, conversing freely with those whom he chanced to meet.

But the proponents of the earlier will insist that, notwithstanding the due and formal execution of the later will, and the testator’s undisputed. knowledge of its contents, that the latter instrument was the result of the dominating will and undue influence exercised by his sister, not in making the will, but in causing the testator to make the instrument; and they insist that the will of July 2,1888, which was made when the testator was in comparative health, residing with his sister, which was republished by the codicil of July 2, 1890, was the result of a deliberate intent upon the part of the testator to deprive his sister of his property, and to give the same to his cousins, the Greens of Troy, and the Barnes of Brooklyn, and that such disposition was not only expressed in his will, but had been expressed in a prior will made May 4, 1888, and that the eyidence tends to show a still earlier will made within a year, perhaps, prior to that time, all containing the same provisions substantially in regard to the disposition of his property, in neither of which wills did his sister have any substantial provision in her favor.

It is further insisted that the declartion and conduct of the deceased, embracing a period of three or four years, are in- strict accordance with the intention as expressed in said will and codicil.

In support of this contention, evidence was produced tending to show that the testator complained of petty annoyances which he had been subjected to at his home when residing with his sister; that he stated he was unkindly treated; that he left the house because of such treatment, and, although his outward relations with his sister were polite and friendly, yet at heart he disliked her, and had deliberately resolved that she should not enjoy any of his property.

In further support of this contention, it is insisted that whilst testator disliked his sister, he was, on the other hand, sincerely attached to his cousins, the Misses Green, and especially Miss Mamie Green, his principal beneficiary under the will, and the Barnes of Brooklyn, with whom he spent a great deal of time, and of whom he frequently spoke to his intimate friends. That these relations between these respective parties, as manifested in the earlier will, continued down until the arrival of his sister at Coney Island on the 13th of July, 1890. It appears he had been quite sick at Troy, from about the 1st of May, 1890, when he left his boarding place on Third street and went to his aunt’s, Mrs. Kate Green, No. 5 Union place, where he remained about six weeks. It appears his sister learned of his illness, and wrote him a letter of sympathy dated June 5, 1890, inviting him to her home, proffering to send for him and nurse him, to which he replied the same day, kindly thanking her for her proffer, said he had been very sick but was better, and that he would come over and see her as soon as he could. It does not appear that he called, though he apologizes for it in a subsequent letter which he wrote to his sister from Brighton Beach.

The proponents of the earlier will insist that his testamentary intention in regard to the disposition of his property remained, as appears in his will and codicil, without change, until his sister took charge of him on the thirteenth day of July; that she thereafter-discharged his former physician, excluded the Barnes who were visiting him from day to day, and continued such exclusion until the day of his death; took possession of his person, dohiinated his will, sent for her own lawyer, had a will drawn in her favor, and then removed him secretly to another place where knowledge of his whereabouts was not known, and would not be likely to be ascertained by the beneficiaries under his former will, and they invoke the rule that, as the former will was executed when the testator was in health, and the circumstances tended to show that it was made with deliberation, and the later will made in ill-health, when in charge of the principal beneficiary, with interest, and with every opportunity impelling her to procure a will in her favor, that the clearest and most satisfactory evidence should be given that this, extraordinary revolution in the testamentary intention of the testator was brought about by such fair and reasonable means as the law justifies and allows, and that the later instrument was the free act and wish of the testator.

¥e are inclined to hold that this rule must obtain in this case,, notwithstanding the general rule that the burden of proof is with the contestants to prove their defense of fraud and undue influence. The period of time when the change occurred is exceedingly brief, not to exceed thirty days. The question then comes to this: Does the evidence in this case furnish satisfactory proof that this complete change, which was wrought in so brief a period, under the circumstances disclosed by the evidence in this case, was the unbiased» uninfluenced act of the testator’s own mind and will %

The proponent of the later will insists that the proof is satisfactory and complete; that the later instrument reflected the mind of the testator at the time of its execution, and in support of her contention claims that the will is a natural one, made in accordance with the common instincts of mankind; that it sprang from motives of duty, affection and gratitude; that it was such as might, with propriety and justice, have been made by the decedent; and moreover-insists that the testimony, which covers much of the past history of the lives of the testator and his sister, shows that they lived together-in one family for many years without bickering or discord, bound together by the ties of love and affection, and that whatever there was that interfered with those relations arose, not to exceed three or four years, before his death. A cloud of witnesses were produced, domestics, seamstresses, family friends and acquaintances, some •calling frequently, some visiting and remaining weeks and months together, others, seamstresses and domestics, employed in the house, off and on for years, who not only testified to friendly and pleasant relationship between the brother and sister, but even at times to marked exhibitions of affection and regard. This testimony is corroborated very greatly by a great body of letters, numbering some 300, extending over a period of ten years, which •evince, at least during the earlier period, not only that the testator was satisfied with his home, but gladly returned there when away. .In 1883, he writes his sister, she being at that time away with her mother, “ I don’t know where I shall stop in Troy, anyhow, I shall be awful lonesome in a boarding-house.” And, again, within a day •or two, “ I wish things were so fixed that you would come home •and open the house.” “ You may think I am in a hurry, but I am tired of going about from pillar to jiost; ” and a day or two later writes, “I am stopping at No. 3 Ida terrace, and may make a •change.” (Ida terrace was the home of Mrs. Kate Green and her daughters.) “I would like to change over to 72 Fifth street.” (At that time the residence of his sister.)

I think it is settled by the great weight of evidence that the testator was satisfied with his home and surroundings, and that affection for his sister dominated his heart at that time, and did for ■some time later. July 2, 1888, the testator prepared an instrument with his own hand, in which he stated, after bequeathing the body •of his estate to his cousins and second cousins, the Greens and Barnes: “ To my sister, Georgianna R. Green, I give and bequeath '•the sum of sixty-two dollars and fifty cents, hoping that she will make good use of it.” It appears that he had made a former, will on the 1st of May, 1888, a copy of which was found among his papers in his own handwriting, which contained the same provisions in Tegard to the disposition of his property to his collateral relatives as the subsequent will of July second, and also contained the following provisions : Unto my sister, Georgianna R. Green, I give and bequeath the sixty-two dollars that she owes me, hoping that she will make good use of it.” Both of the wills contain the following clause: I desire tbafc the sum of $1,000 be set aside to meet legal expenses in ease there is any contest to break this my last will and testament, and if anyone of the heirs shall contest this my last will and testament, then their bequest shall lapse and become void.”

There appears no reason to doubt that these wills expressed the intention of William H. Green at the time they were made. It is manifest that the will of July 2,1888, like the earlier one, of which it was a copy, and, perhaps, an earlier one still, was based upon deep resentment; somehow, under some circmnstances, which the evidence does not explain, the testator felt, whether justly or unjustly, that he had been injured, and its recollection sank deep into his heart, and this will was the undoubted offspring of resentment for an injury, real or imaginary. That it was deep, appears from the fact that time had not softened his feelings towards his sister, although he was courteous and friendly in his external deportment. The will was prepared while living with his sister and before the death of her mother. The resentment had survived an illness in which his sister faithfully and carefully attended him in New York in December, 3889, and undoubtedly continued down to July 2,1890, for he then republished the will by his codicil of that date. His associations with the Greens and the Barnes subsequent to the making of the wills, and his withdrawal from the home of his sister in May, 1889, and his not very frequent visits there thereafter, added to the jealousy and bickering which existed between the different families (Miss Georgianna It. Green on one side and the Greens and Barnes on the other) was not calculated to induce him to change his testamentary intention.

This brings us now to the important question in the case, the change of testamentary intent. That the earlier will was based upon resentment is manifest in the very instrument itself. It is claimed that the resentment or its cause needed but to be removed, when the old love and affection which once reigned in his heart for his sister would return, and then in accordance with the common instincts of humanity his sister, his only heir-at-law and next of kin upon whom the law would cast the inheritance without a will, being the natural object of his bounty would naturally become his principal beneficiary. It is claimed the evidence shows that this very result took place, and that the last will was the result not of fraud or undue influence, but of returned love and affection for the natural object of his bounty.

In support of this contention it is urged that the evidence shows that he was a man of decided opinions, of strong will, and not likely to be influenced to do anything which his heart and judgment did not approve, and the evidence greatly preponderates from those who knew him best, including such witnesses as David M. Green, who was the executor of his father’s will, General Joseph D. Carr, his wife and many others who had known him long and well, neighbors and intimate friends, that he was a person of strong will. The evidence shows, beyond all question, that he dictated the later will, read it carefully and executed it after an express approval of its contents.

But in this case some proof is required in addition, considering the ill health and weakness of the testator, his peculiar surroundings, his absence from those with whom he had. for years associated as friends, and the previous decided expression of the testamentary intention to show that all resentment had been buried and forgotten, and that an entire reconciliation had taken place between this brother and sister, and that they were upon their former footing when, as he stated, he would be glad to change “ from No. 3 Ida terrace (the home of Mrs. Kate Green and her daughters) to 75 Fifth street ” (his sister’s home).

We And him sick in Brooklyn at the Barnes’ with a nurse employed. The doctor recommends a change to Brighton Beach, Coney Island. He goes there accompanied by the nurse. He is sick unto death with his heart trouble, sits up all night at the window on his knees panting for breath. The Barnes visit him every day or two, make quite protracted stays, and the testimony tends to show upon one occasion indulged in contentions in his presence which worried and wearied him. On the eleventh of July he writes a pathetic letter to his sister telling her that he was very ill and adding: “If you go west by way of New York it would be nice for you to come over here for a day. I was sorry I could not see you before I left Troy, but it was not possible. If you could come over I am in room 210. If you wait till fall I may not be able to see you at all, as unless a change takes place soon for the better I shall have passed on to the great majority.”

His sister immediately came down, and, if we may believe tlie testimony of Mr. Fitzliarris, tlie nurse, she was received with every manifestation of joy and affection. What took place from this time on until his death, between this brother and sister, is an important matter to be determined. What explanations followed their meeting, how the differences were settled and adjusted does not appear and it is not necessary that it should, if they were settled and adjusted. Fitzliarris’ testimony tends to show a perfect reconciliation between the parties. He testified that the testator requested her to stay and take charge of him and told her that he wished to-go and live with her again, if he got better, and she told him he would be welcome; that he could have his room on the second floor, right near the bath-room, where it would be convenient for him (he had roomed on third story before), and where she could take care of him. As to dismissing the physician, Dr. Matson, who had been employed by the Barnes, Fitzliarris states the doctor came to Brighton Beach only once and that on the eleventh of July, and he then stated that he could not come again; that his practice required his attention at home, but recommended Dr. Morrill, a. stranger, who attended only once; that on the night after Miss Green’s arrival she telegraphed, at Mr. Green’s direction, to-Dr. Anderton, a physician whom they both knew and who had attended him when he was sick at the Grand Union Hotel, in New York, in December, 1888 ; that he came and took charge of the case; that Mr. Green, at that time, July thirteenth, was very much depressed and was very ill; his feet much swollen; his heart’s action very bad and his temperature below normal; that Dr. Ander-ton gave instructions to keep all persons out of the room and it was in pursuance of these instructions that the Barnes, who came down on one or two occasions after that time, were excluded. The testator stated to the witness, as he testified, that he had been alienated for some years from his sister and had removed from her house; that the Barnes of Brooklyn and the Greens of Troy had tried to prejudice him against his sister; that he had tried to be a peacemaker between them always, but that they had tried to separate him from his sister, but that he thought more of his sister than he did of them. He also testified that letters were received after their reconciliation from both the Greens and Barnes (these were put in evidence), in which derogatory remarks were made about his sister; that after reading them the testator passed them to his sister and said: “ Never mind, Georgie, when I get well I will make it all right. I will put an end to all these insults and persecutions.” He further testifies that on one occasion, shortly after her arrival, when the subject of testator’s giving her a portion of his property was introduced by him, she said: “ She did not come for his money, but for his life.” In fine, if the testimony of the witness Fitzharris could be relied upon with absolute confidence, it would appear, beyond reasonable doubt, so far as the testator was concerned, that all heart-burnings and resentments had been removed and that love for his sister reigned in his heart. It is claimed that the legitimate result of this reconciliation was a change of testamentary intention in regard to his property, so that the sister, instead of those who were wounding his feelings by slighting remarks concerning her, naturally became the object of his bounty.

Mr. Fitzharris’ testimony was challenged upon the hearing as pai'tisan, if not worse, and I should be quite disinclined to decide a •case of the importance of this one upon his uncorroborated testimony, although there was no impeachment of this witness made nor attempted, save that furnished by his own somewhat contradictory statements in regard to some minor matters testified to by him. But such corroboration is found in the testimony of Mrs. Kate R. Tail, the manager of the Laurel House at Patchogue, during the summer of 1890, where William H. Green and his sister took up their abode on the twenty-sixth of July, and where William H. Green remained until his death. This witness, who was a stranger to the parties till that time appeared to be frank and independent, and a person of much intelligence. Her appearance and manner of testifying impressed me favorably, and satisfied me she was a truthful witness. She testified that she had several conversations with Mr. Green at her house; that “ about eleven o’clock on the following Monday, after he came there on Saturday, she found him alone sitting on the piazza, with a lot of newspapers before him ; he told her his sister had gone to Troy to close up her house; he said he had been at Patchogue before and liked the place, and •chatted upon general topics. I asked him how long he was going to stay. He said he was going to stay quite a little while. He said be had been to Brighton, bnt did not like it there, that it was very noisy at night; he was not able to sleep; that he liked it here at night; that he was not disturbed, and was able to sleep.” I asked him where he was going from here, and he said: “ I am going home with my sister Georgie, and I am going to live with her; I have not lived with her recently, bnt I am going back to live with her.” He said: I shall go back to live with her now as long as I live, and if I live until next year and you run the house, I’ll come back here. He said: “ He had sent for his sister, and she came and took care" of him. He said she gave him the very best care. He said she (his sister), had gone up to close the housé and would be back on Tuesday. This was Monday he told me that. He took his dinner upon the piazza that day.” "Witness testified she frequently saw William H. and his sister in his room together; she was reading to him, fanning him and rubbing his hand, and they were kind and affectionate towards each other.” On another occasion he said: “ She was a kind, good sister to him; that she had been kind and faithful to him during his sickness. * * * He was going back to live with Georgie; she was the best friend he ever had.”

It must be remembered that the witness knew nothing of these parties; that she had not met Miss Green; that Miss Green was. absent at the time of the conversation — had been gone for two days; that the testator was in comparative health, able to -walk about the piazza; that he was at the time alone, so that he had ample opportunity to communicate with the Barnes and Greens had he so desired ; and if, in the making of the last will, he had been coerced, unduly influenced, or even over-persuaded, the act was so recent that such influence would have been likely to have left its impress — to have-found expression in that conversation instead of expressions entirely the reverse.

This testimony was not challenged or impeached, or sought to be,, by the contestants of the later will, and it shows a condition of mind upon the part of the testator in absolute accord with the testamentary disposition of his property made by his last will, and with the statements of the witness Fitzharris. Some corroboration also is found; in regard to his removal to Patchogue (which was regarded by the proponents of the first will as a suspicious circumstance, since it was Claimed tliat it was done solely for the purpose of placing bim beyond the influence and reach of the Barnes), in the letter of Mr. Green, dated July 21, 1890, to Miss Crowell, in which he says: “ I have been very ill again and have had several physicians. * * * My sister also closed the house and came down from Troy to nurse me back to health if possible, and will in a week or so take me to another sea-shore resort, as we don’t like this one very well.”

Some question was made upon the trial as to the effect as evidence of the declarations of a testator made prior and subsequent to the making of the will.

It is well settled that the fact of fraud or undue influence cannot be proved by the declarations prior or subsequent of the testator, but such declarations are admissible when they denote the mental status or mental facts in issue.

It is always open to inquiry whether undue influence in any case operates to produce the will, and the conduct and declarations of the testator are entitled to more or less weight, whether made before or subsequent to the making of the will, depending somewhat on the circumstances of each particular case. Subsequent declarations are competent when made so near the time of the execution of the will that a reasonable conclusion may be drawn as to the state of mind of the testator at the time the will was executed. (Shailer v. Bumstead, 99 Mass., 122; Waterman v. Whitney, 1 Kern., 157; Marx v. McGlynn, 88 N. Y., 357.)

The declarations in this case which were made to Mrs. Yail were made so near the time of the making of the will (four days) that they are clearly competent as showing the state and condition of mind under which the last testamentary disposition of the testator’s property was made, and, therefore, are not only competent but cogent evidence upon the material question here in issue. And finally the proponent of the later will invokes the rule “that the law presumes a testator, of sound mind and free volition, will in general bestow his goods upon the next of kin, and will not disinherit his heir ” and asserts the further rule that a change of testamentary inten tion, howsver sudden, which J'esults in giving the inheritance to the heir is not even ground for serious suspicion when the change foL lows a reconciliation after estrangement. I think the rule claimed is correct and that it applies in this case, and especially is the rule true when the reconciliation is stripped of sinister appearance even, by reason of the first advance proceeding from the testator.

Finally, with the most careful and conscientious thought that I have been able to bestow upon this matter, which has involved a great amount of time and labor in the examination of many hundred pages of testimony and voluminous briefs of counsel I have reached the conclusion, in view of the fact that the testator felt that he was “ soon to join the great majority,” and had sent for his sister who thereafter nursed him tenderly and of whom he declared that she was his best friend, and he was going to live with her during the balance of his life; that the differences which so long existed between them, which found such sharp expression in his former wills, and his letters to the Greens were removed, and that there was a complete reconciliation and a burial of resentment antedating the last will. That thereafter, in the light of that fact, every succeeding circumstance, including the exclusion of the Barnes, the making of the later will, the giving of the power of attorney, the exclusion of the Greens as objects of his bounty and the inclusion as legatees of his cousins upon his mother’s side, appears rational and reasonable, and I find that the testator made his later will uninfluenced save by ties of blood, duty, gratitude and affection.

Let a decree be entered admitting the will of July 22, 1890, to probate.

Decree pf surrogate affirmed on the opinion of surrogate, with costs against appellants.

February 24, 1898, ordered that the costs be paid out of estate and not by appellants.


author: Mayiiam, P. J.:

text:
    WILLIAM LEWIS, Respondent, v. ALFRED W. SHULL, Appellant.

      Criminal charge in a civil action — degree of proof required.

    Preponderance of evidence only and not proof beyond a reasonable doubt, is required to maintain the defense of the truth of a criminal charge set up in a civil action for slander.
    Appeal by the defendant, Alfred W. Shull, from a judgment of the Montgomery County Court, entered in the office of the clerk of Montgomery county on the 23d day of February, 1892, on a verdict for seventy-five dollars damages, rendered in favor of the plaintiff at a trial in the Montgomery County Court; and from an order denying a motion for a new trial made, February l'T, 1892, upon the minutes of the judge.

      G. E. Phillips, for the appellant.

      Weller c& Moore, for the respondent.
   Mayiiam, P. J.:

This action was brought for the alleged speaking of slanderous words by the defendant of and concerning the plaintiff, in charging the plaintiff with stealing twelve bushels of defendant’s oats. The answer admits the speaking of the words and alleges their truth in justification.

There was no direct evidence on the trial of the felonious taking of the defendant’s oats by the plaintiff; but the defendant proved circumstances and facts upon the tidal from which he claims that the jury should have found the charge made by him was true. We think, under the evidence in this case, it was a proper question for the jury to determine whether or mot the justification was established, and, unless their verdict might have been improperly influenced by some misdirection of the judge, their finding upon that question cannot be disturbed on this appeal.

The defendant insists that there was such a misdirection by the learned county judge and that, by the charge, the burden was cast upon the defendant of satisfying the jury, beyond reasonable doubt, that the plaintiff was guilty of the larceny charged as in criminal cases, instead of proving, as in civil cases, his affirmative defense by a preponderance of evidence.

On the trial the judge, in various forms of expression, charged the jury that the defendant to establish his justification ; to which, I think, there were exceptions by the defendant sufficiently specific to present the question of the correctness of such charge.

The learned judge, among other things in his charge upon this point, says: Now, then, in this case you must consider it just the same exactly as if you were trying this man upon a charge of stealing, and be was, before you indicted by the grand jury, presented upon trial, with the district attorney upon the one side and his. counsel upon the other.

“ Is there evidence enough in the case here, if presented in such a case, for you to be satisfied that this man did steal those oats ? The evidence must be just as broad as the charge. It must convince.you that he is a thief and that he stole these oats.”

This, I think, is equivalent to charging the jury that to establish-the justification the defendant must satisfy the jury by proof of the> guilt of the plaintiff, beyond reasonable doubt, and the learned', judge, in another part of his charge, says: “ If you come to the conclusion that that is not true, that the defendant has not sustained his theory, has not shown to you conclusively, beyond the shadow of a doubt, that this plaintiff is a thief, then you will find the amount of damages that the plaintiff is entitled .to.”

Does this rule obtain in civil actions of this character ? We think not, within the recent authorities in this State. It is true, that by the English rule proof, beyond a reasonable doubt, is usually required to establish a charge of crime in a civil action. But that rule does not seem to have been followed by the recent cases in this State. In New York Guarantee and Indemnity Company v. Gleason (7 Abb. N. C., 334, 352), Earl, Judge, in pronouncing the opinion of the Court of Appeals, says: “ In such an action, the plaintiff is not bound to establish any fact so clearly that it shall be free from doubt. All that'is required of him is that he shall satisfy the jury by a preponderance of evidence; and he is never called upon to free their minds of all doubt.”

While the learned judge, in these remarks, refers to the plaintiff, it needs no argument to show that the same rule is applicable to a defendant when he asserts an affirmative proposition in his defense, which he is called upon to prove.

In Johnson v. The Agricultural Insurance Company (25 Hun, 251) this question arose, when the answer set up that the fire, out of which the plaintiff claimed to recover for loss on his policy, was caused by arson committed by the plaintiff, and the court held that the defendant was not required to show the arson beyond all reasonable doubt, as required in the prosecution of an indictment for ;arson, but that sueb defense might be established upon a preponderance of proof, as required to establish a fact in civil actions.

In Seybolt v. The New York, Lake Erie and Western Railroad Company (95 N. Y., 562) it was held that the party upon whom rests the burden of proof in a civil action, is not bound to establish a case free from reasonable doubt; he performs his obligations by presenting a preponderance of evidence.

In this case, Rugeb, Ch. J., quoted, with approbation, the rule upon this subject, as stated in 3 Greenleaf’s Evidence, section 29, as follows: “A distinction is to be noted between civil and criminal cases in respect to the degree or quantity of evidence necessary to justify the jury in finding their verdict for the government. In civil cases, their duty is to weigh the evidence carefully, and to find for the party in whose favor the evidence preponderates, although not free from reasonable doubt. But in criminal cases, the party accused is entitled to the benefit of the legal presumption in favor of innocence, which, in doubtful cases, is always sufficient to turn the scale in his favor.”

. We see no reason why this rule does not apply to the case at bar; and tested by it, the learned judge held the jury to a standard of proof, not exacted in civil cases such as this, which we cannot say did not influence their verdict to the defendant’s prejudice.

We think, for this reason, the judgment of the County Court should be reversed.

PutNAM and Heekioe, JJ., concurred.

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


author: MayhaM, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAYTON S. KELLOGG, Appellant.

      Public street — dedication and, acceptance — evidence of.

    Evidence that the husband of the owner of certain farm land in a village caused it to he surveyed, staked, plotted and mapped into streets and lots, and that thereafter the owner, with her husband, deeded several of the lots to different persons, describing the lots by their numbers on the map (which was referred to), and as bounded by certain streets, naming them, as given on the map, and that some ten years after such survey, and after the death of .such owner, the village authorities passed a resolution or ordinance to the effect that the village accepted the streets, “as laid out and dedicated” and named by the deceased owner, without any direct evidence that the village at or near the time of making the map or survey did any act to adopt the survey, or the streets plotted on it as streets of the village, or that any highway or street labor had been applied on the streets designated on the map before the passage of said ordinance:

      Held, not sufficient to constitute a public street by dedication and acceptance.
    Appeal by the defendant, Dayton S. Kellogg, from a judgment of conviction in the Court of Sessions of Montgomery County on the 18th day of June, 1892, entered upon á verdict rendered on a trial under an indictment for an alleged misdemeanor in obstructing, in August, 1891, an alleged public street or highway in the village of Fort Plain, known as Henry street. »

      George E. Phillips and A. M. Mills, for the appellant.

      Charles 8. Nisbet, for the respondent.
   MayhaM, P. J.:

The principal question on this appeal is, whether the locus in quo upon which the alleged obstruction was erected by the defendant, was by dedication by the owner of the land, and acceptance by the municipal authorities of the village of Fort Plain, a public highway.

There is no claim on the part of the respondent that the land upon which this obstruction was placed by the defendant had ever been condemned and taken by the public authorities for a public street under the power of eminent domain.

But it is insisted that the facts proved on the trial established in law a dedication by the owner and .an acceptance by the municipality of the land in dispute so as to constitute it a public street.

The case shows that Hannah Kellogg, prior to and during the year 1881, owned the land then and now known as Prospect Hill; and that in November of that year, at the request of this defendant, an engineer laid out part of Prospect Hill into lots and staked out streets, drove stakes at the corners of each lot, and marked out to show where the streets were to be located, and after that was done made a map of it.

At the time of making this survey and map, the land known as Prospect Hill was all a part of the farm of Hannah Kellogg, and was Used as meadow and pasture lands by ber until December, 1881, when she, with her husband, this defendant, deeded to one Edwards, lots designated in such conveyance as “ lots number one (1), and two (2), in Section five on a map of village lots made by E. TT, Putnam, civil engineer for Dayton S. Kellogg, in the month of November, 1881.” This conveyance bounded the lots on the east by Clinton avenue, and north by Henry street; conveyed the fee of Clinton avenue, subject to the right of the public to use said street, and reserved the right in the grantors to make such improvement on such street or avenue as they may deem advisable in the interest of lot owners.

, In 1885 Dayton S. Kellogg and Hannah Kellogg conveyed lots No. 3 and 4 by deed with similiar reference to the survey and map and with like reservations, and in May, 1886, lot No. 8 with like reference and reservations.

Several other deeds were executed in 1885 by the same parties containing similar reference to the map and survey, and containing substantially the same reservations.

These deeds were all put in evidence by the people under the defendant’s objection,

There is no direct evidence in the case that the corporation at the time or near the time of making this map and survey, did any act to adopt such survey, or the streets platted on it as streets of the village.

Nor is there any evidence to which my attention has been directed, or that I can find in the record that any highway or street labor has ever been, applied on the streets designated on that survey or map, before the passage of a resolution by the common council of the village of Fort Plain on the 2Yth of July, 1891. That resolution or ordinance is as follows:

Whereas, Hannah Kellogg, deceased, owner, did, in the year 1881, lay out certain streets in the village of Fort Plain, commencing at or near the bridge at the red mill in said village, naming said streets as Kellogg avenue, Waddell avenue, Clark avenue, Gilbert avenue, Clinton avenue, Henry avenue and Edward avenue, as per map by her made and filed in Montgomery county clerk’s office; therefore,
JResol/ued, That said village accept of said streets above named as laid out, and dedicated by said Hannah Kellogg, deceased, land owner; that said streets retain tlie same names and be known and named as originally named by said land owner.” This ordinance was received in evidence under the defendant’s objection.

The survey, map, conveyances and ordinance above referred to constiute all the evidence of a dedication and acceptance which I am able to find in the record.

"Without stopping here to consider the admissibility of the evidence by which this dedication and acceptance is sought to be established I do not think it proves such a dedication and acceptance as is required to divest the owner of the lands embraced in these streets or to invest the corporation with the title for street purposes.

No act "of the owner of this land has been proved showing, or tending to show, an absolute surrender on her part to the village or public of her right, title and control of these lands; assuming that the survey and maps were made by her direction and authority (which is not shown), still that act would not be inconsistent with a purpose on her part to retain title and control in herself of all these lands subject only to the rights and privileges conferred by her grants on her grantees.

It was in no sense a dedication to the public or the village, but simply a method of sub-dividing her own property for her own convenience, in order to facilitate sales of the same in small parcels.

To constitute a dedication to the public which shall divest the owner of and invest the public with the right or title to land something more is required than was done by her in this case.

In Niagara, Falls Suspension Bridge Company v. Henry Bachman (66 N. Y., 261) it was held that “ where the owner of land lays the same out into lots and streets, makes and files a map or plot thereof and sells and conveys lots by the map, bounded upon the streets as delineated thereon, this does not necessarily and without other facts make the streets so laid out public highways.” It was also held that to constitute a public highway by dedication there must not only be a setting apart and a surrender to the public use of the land by the owner, but also, an acceptance and formal opening by the proper authorities or a user.”

The acts and declarations of the owner must be unmistakable in their purpose and decisive in their character showing the intent to dedicate the land absolutely and irrevocably to the public use.

In Holdane v. Trustees of the Village of Cold Springs (21 N. Y., 478), Wright, J., in discussing this question, says : “ Throwing open land in a village and fencing it on each side and causing the way or avenue to be designated as public on a map of the village, are acts tending strongly to show a design, presently, or at some future time* to dedicate and devote it to the public use. But these acts are not conclusive to establish a present dedication binding on the owner of the land.”

“ One may fence off a strip of his own land for the purpose of a passage-way opening on a public street, or he may lay out a street through it, with the view of subdividing his land bounded upon it into village lots, intending, upon the sale of such lots, to dedicate the street to the use of the public, but, in such cases, though the public may have occasionally, or, indeed, at all times, used the open way in passing to and from the inclosure of an adjoining proprietor, i-t could scarcely be pretended that the land had thereby become burdened with an irrevocable public servitude.”

Tested by this rule there was not such a dedication to the public by Mrs. Kellogg in her lifetime as to vest the right to these lands in the public as a highway.

But, if the acts of Mrs. Kellogg could be construed into evidence of willingness on her part, at the time of this survey, to dedicate these streets to the public, still there was clearly, at that time, no adoption by the municipality of such proffered dedication.

The adoption of the ordinance of July, 1891, was a declaration or acknowledgment on the part of the municipality that up to that time there had been no adoption by it, and hence no dedication. (City of Cohoes v. D. and H. C. Co., 54 Hun, 558; reversed, 134 N. Y., 397.) And the law is well setted that there can be no dedication without an acceptance by the public. (Fonda v. Borst, 2 Keyes, 50; Niagara Falls v. Bachman, supra.)

Before such acceptance the village owed no duty to the public in reference to these streets, and at the time of its adoption the proffered dedication by Mrs. Kellogg, if any was ever made, was, it would seem, revoked by her death. (Bridges v. Wyckoff, 67 N. Y., 132; Wallace v. Townsend, 43 Ohio St. Rep., 537.)

If I am right in the above conclusions there was no public highway or street at the point where the alleged obstruction was placed by tbe defendant, and his act was not a violation of section 385 of the Penal Code.

Upon this view of the case it is unnecessary to examine the other exception taken by the defendant on the trial.

The judgment of conviction must be reversed and a new trial ordered under the provisions of section 543 of the Code of Criminal Procedure.

PutNAM, J., concurred in result; HbeeioK, J., not voting.

Judgment of conviction reversed and a new trial ordered.


author: MayhAM, P. J.:

text:
    WALTER J. EATON, Respondent, v. EPHRAIM D. WALDRON and Another, Appellants.

      Sale of a commodity — opportunity to the vendee to inspect it — sale in bulk and not by sample — ca/oeat emptor.

    A vendee of lumtier examined it in piles before the sale was consummated, and removed and personally inspected a portion of it, and the whole hulk was open to his examination and inspection had he been disposed to make such examination.

      Held, that the vendee must, in the absence of any proof of fraud or concealment on the part of the vendor, be deemed to have made the purchase upon his personal inspection of the lumber in bulk and not by sample, and that, therefore, there was no implied warranty that the bulk was equal in quality to the portions specially examined by the vendee.
    To constitute a sale by sample there must be an agreement to sell by sample, or such an understanding that the sale is by sample, as to excuse the purchaser from examining the bulk of the commodity.
    The maxim caveat emptor applies to a sale of personal property, in the absence of an express warranty or fraud, when the vendee has an opportunity to inspect the commodity and the vendor is neither the manufacturer nor grower of the article he sells.
    Appeal by the defendants, Ephraim D. Waldron and George E. Waldron, from a judgment of the Supreme Court, entered in the office of the clerk of Albany county on the 26th day of April, 1892, in favor of the plaintiff, on the report of a referee, awarding the plaintiff $334.55, with interest and costs.

      William P. Ganimell, Jr., for the appellants.

      George Lawyer, for the respondent.
   MayhAM, P. J.:

Tbe complaint in this action alleges that the defendants purchased of one Hill a quantity of lumber at the agreed price of $339.55, and at the time of the sale and delivery of the same, Hill agreed to deduct from the price the sum of five dollars for the transportation of the lumber.

The complaint also alleges a transfer of the claim from Hill to the plaintiff before the commencement of this action. The answer puts in issue the plaintiff’s title to the claim, and, among other things, charges that at the time of negotiating the sale of the lumber by Hill to the defendants, lie falsely and fraudulently, warranted ■and recommended that the timber was of a particular quality, and ■alleges that it was not of the quality recommended.

The proof discloses that at the time of negotiating the sale of this lumber, one of the defendants examined the lumber in the pile, ■and took off a number of pieces of the lumber, and there is a conflict in the evidence as to whether the lumber examined by the ■defendants was a fair sample of the average of the entire pile or •quantity claimed by the plaintiff to have been sold to the defendants.

The lumber was carried to the defendants’ mill, or the mill designated by them, and was there, by their direction, in part planed, when the defendants determined to rescind the contract, and caused the lumber to be piled, and gave notice to the vendor, Hill, that the same was subject to his order.

There was no evidence in the case that Hill committed any fraud upon the defendants, and the referee refused to find that he, at the time of the sale, recommended the lumber not examined to correspond with that examined by the defendants.

The defendants, having taken possession of this lumber changed its character, not returning the same to the plaintiff or his assignor, Were not, under the circumstances of this case, in a condition to rescind the contract in toto.

The most that they could do under the circumstances, if that was a breach of the warrantee as to the quality of the lumber, was to ■set up such breach, and abate from the plaintiff’s claim the amount of damage sustained by reason of the breach of warranty.

But we think the circumstances of this case establish that this was not a sale by sample. , One of the defendants’ firm examined tbe lumber in tbe piles before tbe sale, removed and personally-inspected a portion of the same, and the whole bulk of tbe lumber was open to bis examination and inspection if be had been disposed to make such examination; and in tbe absence of any proof of fraud or concealment on tbe part of the vendor, tbe purchaser must be deemed to have made tbe purchase upon bis personal inspection of the commodity in bulk, and not by sample.

To constitute a sale by sample there must be an agreement to sell by sample, or such an understanding that tbe sale is by sample as to excuse tbe purchaser from examining tbe bulk of tbe commodity. (Beirne v. Dord, 5 N. Y., 95 ; Ames v. Jones, 77 id., 614.)

Nor do we think that tbe agreement between the parties was an express warranty as to tbe quality of this lumber, and tbe rule seems well settled that a sale of personal property in tbe absence of an express warranty or fraud, when the buyer lias an opportunity to inspect tbe commodity, and tbe vendor is neither tbe manufacturer or grower of tbe article be sells, the maxim ociveat envptor applies.

Tbe rights and liabilities of vendor and vendee when there .is no express warranty or fraud, and when tbe vendee lias an opportunity to examine tbe article sold, and does examine a portion of tbe same, are fully discussed in tbe United States Supreme Court by Davis, J., in Barnard v. Kellogg (10 Wall., 383). In that case a broker, having tbe plaintiff’s wool for sale, sent samples to the defendant, with a statement of tbe price, and the defendant sent an offer for tbe same, if tbe wool all around equaled tbe sample, and tbe plaintiff’s broker gave notice of tbe acceptance of tbe offer, provided the defendant examined tbe wool on a day proposed.

On the appointed day tbe defendant examined a portion of tbe wool, and bad a full and fair opportunity of examining tbe whole of it, although the same was in bales. Sometime after, on opening tbe bales, they were found to be damaged and rotten internally.

Tbe court held that it was not a sale by sample; that there was no express warranty; and that the plaintiff, under tbe circumstances of that case, was not liable upon an implied warranty; and that tbe defendant having bad a full opportunity to examine tbe wool, and having done so in part, was presumed to have relied upon his examination and judgment of tbe quality of tbe commodity in bulk, and tbe learned judge relates tbe well-settled rule as follows: “ No principle of tbe common law has been better established or more often affirmed, both in this country and in England, than that, in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim caveat emptor applies. Such a rule, requiring the purchaser to take care of his own interests, has been found best adapted to the wants of the trade in the business transactions of life.”

“And he cannot relieve himself and charge the seller on the ground that an examination will occupy time and is attended with labor and inconvenience.

“If it is practicable, no matter how inconvenient, the rule applies. * * *

“ Of such, universal acceptance is the doctrine of caveat emptor in this country that the courts of all the States in the Onion where the common law prevails, with one exception, South Carolina, sanction it.”

The same rule obtains in this State. In Gaylord Manufacturing Company v. Allen (53 N. Y., 515) it was held that upon an executory contract for the sale of a chattel, fraud or latent defect, not having been alleged, acceptance after an opportunity to examine is conclusive upon the question of the quality of the goods, whether the agreement, as to quality, is express or implied.

In Oneida Manufacturing Society v. Lawrence (4 Cow., 440) it was held that in an ordinary sale, when the vendee has an opportunity to examine the commodity, the vendor is not answerable for latent defects, without fraud or an express warranty, or such an affirmation or representation as is tantamount to a warranty and not the mere expression of an opinion.

The law upon this subject is clearly stated in 2 Kent’s Commentaries ([3d ed.], 484, 485) as follows: “ There is no breach of any implied confidence that one party will not profit by his suj>erior knowledge, as to facts and circumstances open to the observation of both parties or equally within the reach of their ordinary diligence, because neither party reposes in any such confidence, unless it be specially tendered or required. Each one, in ordinary cases, judges for bimself and relies confidently, and, perhaps, presumptiously upon the sufficiency of his own knowledge, skill and diligence.

“ The common law affords to every one reasonable protection against fraud in dealing, but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly or a careless indifference to the ordinary and accessible means of information.

“ It reconciles the claims of convenience, with the duties of good faith, to every extent compatible with the interest of commerce.

“ This it does by requiring the purchaser to apply his attention to those particulars which may be supposed within the reach of his observation and judgment and the vendor to communicate those particulars and defects which cannot he supposed to be immediately within the reach of such attention. If the purchaser be wanting; in attention to these points where attention would have been sufficient to protect him from surprise or imposition, the maxim caveat em-ptor ought to apply.”

Applying the rules as above laid down, both upon principle and authority, to the case at bar we do not see how the judgment in this case can be reversed.

The case shows that the vendor invited the attention of the: defendants to the examination and inspection of this lumber, and the defendants made such examination and inspection, as far as desired by them, before the purchase; the referee finds that there was no express warranty, and, as the evidence upon that point is. somewhat in conflict, we think, upon the whole evidence upon that subject, his report cannot be disturbed by this court, as the sale was not by sample; there was no warranty, either express or implied, that the bulk of the lumber was as good as the portions examined, especially by the defendants. Nor does the referee find, or the-proof establish, that the bulk differed from the part so examined.

We have examined the various exceptions taken by the learned counsel for the defendants to the findings and refusals to find by the referee, and the other exceptions taken by the defendants on the trial, and see no error for which the judgment should be re versed-

PutNAM and HerricK, JJ., concurred.

Judgment affirmed, with costs.


author: Russell, J.:

text:
    WILLIAM T. HART and Others, Respondents, v. THE OGDENSBURG AND LAKE CHAMPLAIN RAILROAD COMPANY and THE CENTRAL VERMONT RAILROAD COMPANY, Appellants.

      Open commission to another State — property in litigation here, evidence in another State — affidavit by attorney on information and belief — examination of adverse pan'ty.

    In an action by certain stockholders of a New York railroad company to enjoin its consolidation with a Vermont company the exact evidence of certain material allegations of the complaint, as to dealings between the companies and between the nominal officers of the New York company, who were charged to have been really the agents of the Vermont company, could only be obtained from the books and papers of the two companies which were in the possession of the Vermont company in that state.

      Held, that as the subject-matter or property affected by the proposed consolidation, being the road-bed and other property of the New York company, was in the State of New York, the proper forum for the action was here.
    That this being so, the fact that the evidence was in Vermont, and that, consequently, the issues of fact must largely be tried there, should be treated as an incident of the litigation here, and that a proper case for the issuance of an open commission, on the application of the plaintiffs, was presented.
    It is not an objection to the granting of a commission to examine an adverse party; that the affidavit therefor is made by the attorney, on information and belief, and not by the moving party himself, where the conclusions stated upon information and belief are based upon facts which appear in the case beyond contradiction.
    It is not necessary to prove, in order to obtain leave to examine an adverse party or to take his testimony by commission, that such adverse party will state the facts in a manner favorable to the moving party, but it must be made evident that such adverse party should have knowledge of the facts from which the moving party seeks to draw the favorable conclusion.
    Appeal by the defendants, the Ogdensburg and Lake Champlain Railroad Company and the Central Vermont Railroad Company, from an order of Hon. Leslie W. Russell, a justice of the Supreme Court, entered in the office of the clerk of St. Lawrence county on the 7th day of December, 1892, granting the plaintiffs’ motion for an open commission to take testimony in the State of Vermont.

      Louis KasbrouoJc, Daniel Magone and John O. Keeler, for the appellants.

      Theodore Swift, Charles O. Tappan and William C. Loring, for the respondents.

      Order granting an open commission affirmed on opinion of Special Term, with ten dollars costs and printing and other disbursements.
    Present — Mayham, P. J., PutNAm and IIekbicK, JJ.
   The opinion of Special Term is as follows:

Russell, J.:

The plaintiffs, as stockholders of the Ogdensburg Company, sue the defendants to prevent a consolidation of the two companies. Their grounds for relief shortly stated are:

First. The Ogdensburg Company is so largely officered by the other company and so completly within its grasp, that the con. tract of consolidation proposed is simply one which the Central Vermont Company is making with itself wherever it affects the property of the Ogdensburg Company, and, consequently, the interest, of the plaintiffs.

Secondly. If for this reason the contract be not void, it is still so,, because grossly inequitable for many reasons, one being that it is proposed to take ten shares of the Ogdensburg Company to make one. share of the new company, while the Central Vermont Company exchanges its shares each for each in the new company.

The subject-matter or property affected by the proposed consolidation, being the road-bed and the other property of the Ogdens-burg Company lies, within the State of New York. This is, therefore, properly the forum for the litigation. The evidences of the dealings for past years between the companies and between the nominal officers of the Ogdensburg Company, wrho are charged to-have been really the agents of the Central Vermont Company, are shown by books and papers which are outside the State and in the possession of the latter company in the State of Vermont. If, therefore, the plaintiffs are compelled to prove, as matters of fact, certain allegations of their complaint by exact evidence as they appear upon the books and from the papers of the two companies, and as-known by the officers of the two companies, it is necessary for them to go to the fountain head of the evidence and largely try the matters of fact in the State of Vermont. If this necessity arose from the attempt of the plaintiffs to bring their action in a forum which was palpably out of place, it would be sufficient to deny an open commission to them. Tbe courts would, tell them to go to that forum for trial. But as they have brought their action where the property lies the necessity is an incident, and does not bar their right to a fair trial

The motion is strenuously opposed on various grounds, none of which seem to this court to be sufficiently meritorious to call for an absolute denial of the motion.

It is stated, in the affidavit of the attorney for both companies, upon information and belief, that the action was brought to compel the purchase of the plaintiffs stock at a large pi’iee. I see no fact stated by him, or appearing from any of the papers, which justifies the inculpating part of such a charge. If it is meant that the plaintiffs are seeking with diligence, and the use of all such legal appliances as are proper to protect their stock interest in the Ogdens-burg Company, and would be glad if such diligent and strenuous action appreciated the value of their stock sufficiently so that those interested in the defense would purchase at a satisfactory price, then the plaintiffs are doing only that which they have a legal right to do, and it is not to be supposed that anyone who brings a legal action does so to simply vindicate a pure principle of morality and justice.

Second. The defendants also claim laches. No right of theirs seems to have been impaired, or any position lost by delay. The next trial term in St. Lawrence county is nearly two months away, and it would seem that this commission might be executed, if both parties proceed with diligence, long before that term.

Thvrd. It is contended that the application, so far as it is founded upon the allegations of the complaint, and upon the statements of the attorney and counsel in the moving affidavits, rests upon information and belief, and various cases are cited containing expressions of opinion by different judges, that in such cases the affidavit should be made by the parties themselves, instead of the attorney and counsel. There is in many eases a reason for such a rule. But affidavits and statements in papers are simply designed to present facts for the information of the court, and upon which it can act. A conclusion stated upon information and belief, but which is based upon facts which appear beyond contradiction, is as convincing as the absolute statement of knowledge. In this case many of the facts are beyond dispute. Some of them are admitted by the pleadings, and, of course, as to those no evidence is required. But other allegations which, upon the argument of the injunction before me, were acquiesced in, or assumed for the purposes of that argument to be as claimed by the plaintiffs, are put in issue by the forms of the answers. Hence, evidence is required, even upon the various facts which demonstrate the connection of the Central Yermont Company with the organization of the Ogdensburg Company for -various years back. The entire scope of the allegations of the complaint charging bad faith and mismanagement of the Ogdensburg Company is denied by .the answers.

It, therefore, comes pretty much to this: Either this court must, upon this motion, compel the plaintiffs to give up their case by denying to them the opportunity to prove it, or must allow them such a commission as will enable them to get their evidence, which must almost entirely, come from adverse witnesses, and books and papers in the possession of the adverse parties. Those adverse parties deny to these plaintiffs a right or privilege to examine these books and papers, although the plaintiffs are stockholders. The claim made by defendant’s counsel that, when an examination of an adverse party, or the testimony of an adverse party by commission is sought, it is necessary to prove, to get the order, that that adverse party will state the facts favorable to the side moving, seems to me to be unfounded. It is doubtless the rule that, in the requirement of the adverse party to submit to an examination, it should be evident that that adverse party should have knowledge of the facts from which the moving party seeks to draw the favorable conclusion; but that is the extent of the rule. Otherwise a denial under oath upon the motion by the adverse party that he could testify favorably would be sufficient to destroy the application.

I think the motion should be granted, and the only serious difficulty which I have had with the determination is, as to the extent of the latitude to be allowed. Plainly an ordinary commission with written interrogatories would be useless in view of the want of exact knowledge of the methods of the management of the two companies possessed by the plaintiffs or their counsel. It is also evident that the plaintiffs are not in possession of the names of the precise persons who have custody of the important books and documents which they may need, or of the names of those who may have passed from the service of the defendants, but who were actors at the time of various of the events. It may be easily seen why the plaintiffs can charge the happening of various events which culminated in what they allege to be a disaster, and yet not be able, prior to an examination of the parties participating, to state m extenso by common-law evidence the exact means by which the result was attained. I cannot believe that the defendants or their counsel will present needless or harassing obstacles in the way of obtaining proper and relevant evidence upon the issues after the court shall have awarded a commission for that purpose. And, acting on such belief, I cannot indulge the plaintiffs with the extreme latitude of such an open commission as would allow an unnecessary range of examination, nor do I believe they desire it. Therefore, the commission, in a general way, should be limited to an examination of those present and past officers, agents and clerks of the companies who have or have had charge of the books and papers, and have knowledge of the events alleged in the complaint upon those subjects, and the examination should be confined to proper proof : First. As to whether the defendant, the Ogdensburg Company, has been under the control of the management of the other defendant, and to what extent ? Second. By whom and under what circumstance was the attempted consolidation arranged and so far carried on ? Third. The circumstances which render that arrangement unjust to the Ogdensburg Company; and, fourth, the amounts of money or property which the Central Vermont Company should have credited to the Ogdensburg Company, or which they are obliged in law to account for?