author: Van Brunt, P. J.: Daniels, J.:

text:
    JAMES C. FRENCH, Plaintiff, v. SAMUEL T. DAUCHY and GEORGE K. DAUCHY, Defendants, Impleaded with JOSEPH W. NICHOLS.

      JReceiver's bond — sureties upon, not liable until the receiver or his administrator has been called to an account.

    Where a receiver has died during the continuance of the receivership, and an administratrix of his estate has been appointed, and no proceedings have been taken to compel an accounting either by the receiver or his administratrix, an action cannot be maintained against the sureties upon the receiver’s bond (there being no insuperable obstacle to an accounting by the receiver or his administratrix) until such accounting shall have been had.
    Motion for a new trial made by tbe defendants upon exceptions taken on a trial at the New York Circuit, before tbe court and a jury, which were ordered to be heard in the first instance at the General Term.

      S. B. Brownell, for the motion.

      Edward J). McCarthy, opposed.
   Van Brunt, P. J.:

This action was brought upon a receiver’s bond given by one A. Dewitt Baldwin upon his appointment as receiver in tbe year 1816 in an action for the dissolution and liquidation of tbe copartnership existing between the plaintiff and one Dauchy, and the-only question necessary to consider upon this motion is, whether an action can be brought against the sureties upon a receiver’s bond without first having the accounts of the receiver duly settled.

The evidence in this case showed that the receiver had received some money in 1816 ; that he had incurred obligations in the business of the receivership ; that there were debts of the firm of which he was appointed receiver; that he had died, and that an administratrix had been appointed, and that no proceedings had ever been taken to compel an accounting either by the receiver or bis administratrix. "We do not think that this action can be maintained without an accounting. There were no insujierable obstacles to an accounting; there was an administratrix of the receiver who could be called upon to account in proceedings to establish a claim against his estate.

The plaintiff claims to treat this bond as though made to himself and his partner, whereas it runs to the People of the State; is a bond not only for the benefit of the partners, but also their creditors.

It appears that in November, 1884, there were debts unpaid of the firm, and there is no evidence that they have been paid. It also appears that the receiver had incurred liabilities in the performance of his trust, and, although it may be true that these claims are not liens upon the funds in the receiver’s hands, and are personal claims, yet they are claims which, if properly incurred, the receiver, upon an accounting, would be allowed to payout of the funds in his hands.

The claims of creditors and the disbursements of the receiver and the claims against him in the administration of the trust cannot be determined in an action upon the bond. There must be an accounting to settle the amount of the liability of the receiver, and to whom such liability exists, before an action upon the bond will lie.

In the case of Cuddeback v. Kent (5 Paige, 96) no such question was involved, and the later case, Salisbury v. Van Hoesen (3 Hill, 77), entirely coincides with the view above taken, and it seems to be absolutely necessary for the protection of all the parties whom the obligee of the bonds represents, that such a course should be pursued.

The motion for a new trial must be granted, with costs to the defendant, to abide the final event.

Brady, J., concurred.

Daniels, J.:

The rule that there should be an accounting settling the receiver’s accounts before an action upon his bond can be maintained is sustained by State v. Gibson (21 Ark., 140); Bank of Washington v. Creditors (86 N. C., 323) and Atkinson v. Smith (89 id., 72), and also by the authorities referred to in the opinions, And the result from it is, that this judgment must be reversed, as that is directed in the opinion of the presiding justice.

Motion for new trial granted, with costs to the defendant, to abide the final event.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    MIMA ATKINS, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Evidence — competency of questions to a physician as to the effect of injuries received.

    In an action to recover damages for personal injuries, alleged to have been sustained through the negligence of the defendant, it is not competent for the plaintiff’s attorney to direct a witness to “ tell the jury what results are likely to flow from the injuries from which Mrs. Atkins was suffering on the 3d of January, 1888.”
    The following question is also incompetent in such a case: “ For what have you treated Mrs. Atkins; what symptoms have you treated her for during the time intervening between the 3d of January, 1888, to the present time, due entirely to the injuries she received at the time of the accident?” as it leaves the witness to determine what injuries the plaintiff has received from the accident, and what her previous condition has been, without the jury having any knowledge upon what such determination was based; it also makes the witness testify not to an opinion, hut to the absolute fact that the symptoms arose from the injuries which the physician assumed the plaintiff to have received, as regards the nature of which assumptions on the part of the physician the jury were entirely ignorant.
    Appeal by tbe defendant from a judgment, entered in tbe office of the clerk of the county of New York on the 15th day of November, 1889, after a verdict in the sum of $3,833, rendered in favor of the plaintiff upon a trial before the court and a jury at the New York Circuit.
    The action was brought by the plaintiff to recover damages alleged to have been caused by injuries which she sustained when a passenger on board the defendant’s train, because of a collision between two trains on the defendant’s road.

      Samuel Blythe Rodgers, for the appellant.
    IF. J. Gurtis, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages for personal injuries alleged to have been sustained because of the negligence of the defendant. The only questions submitted upon this appeal arise upon exceptions to tlie admission of questions relating to the permanency of the injuries received.

The following question was asked of one of themedieal witnesses by the plaintiff: Tell the jury what results are likely to flow from the injuries from which Mrs. Atkins was suffering on the 3d of January, 1888 ? This question was duly objected to and the objection overruled. This was clearly error. This form of question has been so often condemned that it seems somewhat remarkable that it should still be persisted in. In the cases of Johnson v. Manhattan Railroad Company (52 Hun, 111); Strohm v. New York, Lake Erie and Western Railroad Company (96 N. Y., 306); Griswold v. Railroad Company (115 id., 61), such a form of interrogatory is expressly condemned.

There was another class of expert evidence, which was admitted under objection, which was equally obnoxious to the rules of evidence. The physician had testified that he had never seen the plaintiff, to attend her professionally, before she was hurt; that he had no personal knowledge of her medical history prior to the accident except that which he gained from her in' questioning her when he first saw her and subsequently. No evidence was given as to what the plaintiff had told the physician, and this question was asked: “ For what have you treated Mrs. Atkins; what symptoms have you treated her for during the time intervening between the 3d of January, 1888, to the present time, due entirely to the injuries she received at the time of the accident.” This question was duly objected to and objection overruled. This question allowed the witness completely to usurp the functions of the jury.

It left the witness to determine what injuries the plaintiff had received from the accident. It left the witness to determine what her previous condition had been, without the jury having any knowledge upon what such determination was based; and the question also made the witness testify not as to an opinion, but to the absolute facts that the symptoms arose from the injuries which the physician assumed the plaintiff to have received, but what those were which the physician assumed the jury were entirely ignorant.

In fact, throughout the whole of this case the medical experts were allowed to testify without the jury having the slightest information as to upon what such evidence was founded.

The judgment and order appealed from must be reversed, with costs to the appellant to abide the event.

Brady and Daniels, JJ., concurred.

Judgment and order reversed, with costs to the appellant to abide the event.


author: Van Brunt, B. J.:

text:
    JAMES BROOKS, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      cJudgment which, upon its face, is an adjudication upon the merits — parol evidence to explain it, Jww far competent.

    An adjudication, which purports upon its face to be an adjudication upon the merits of a controversy, cannot be shown, in a collateral proceeding, by parol evidence, to have been otherwise, except where there is an absence of jurisdiction either over the party or the subject-matter.
    In an action brought to have an assessment for paving declared invalid to the extent of five twelfths thereof, a defense was interposed that the plaintiff had previously presented his petition to have the assessment adjudged to be irregular and void, and that such proceedings were had thereon that the application of the petitioner had been denied.

      Held, that evidence, offered for the purpose of avoiding such defense, to the effect that the denial of the application was consented to because it was discovered that the assessment had been paid, was incompetent.
    Appeal by tlie defendant from an order, entered in tlie office of the clerk of the county of New York on the 20th day of February, 1890, after a trial before the court and a jury at the New York Circuit, whereby it was adjudged that the plaintiff recover of tlie defendant the sum of $360.78.
    The action was brought for the purpose of obtaining an adjudication that an assessment on certain land was invalid to the extent of an alleged over-payment made by the plaintiff in the sum of $197.87, with interest.

      G. L. Sterling, for the appellant.

      Cecil O. Higgins, for the respondent
   Van Brunt, B. J.:

This action, was brought to have an assessment for paving declared invalid to the extent of five-twelfths thereof, and to recovér that proportion of the assessment on his property which had been paid by the plaintiff. Among other defenses set up was one that the plaintiff had previously presented his petition under and in pursuance of chapter 338 of the Laws of 1858, and the amendments thereof, to a judge of this court to have the said assessment adjudged irregular and void and vacated; that such proceedings were thereupon had that the application of the petitioner was denied.

This defense was proved upon the trial, and its effect was sought to be avoided by parol proof that the denial of the application was •consented to so far as it affects the property in question, because it was discovered that the assessment upon this property had been paid. The court permitted this evidence to be introduced, although duly objected to, and gave the plaintiff judgment. I cannot see how an adjudication, upon its face an adjudication upon the merits of a controversy, can be shown by parol evidence in a collateral proceeding to have been otherwise.

The application of the plaintiff in respect to these lots appears, after a hearing, to have been denied. It was not dismissed, but the merits seem to have been passed upon. The fact that the order recites that it was entered by consent in no way alters its validity or effect. After a hearing, the plaintiff confessed judgment; that is all that this consent amounts to, and no record can be impeached by parol in a collateral proceeding.

It is, however, claimed that the adjudication is void, because the court had no power to entertain the application (Matter of Lima, 77 N. Y., 170), the assessment having been paid. The court had the power to decide whether or not it had jurisdiction in the proceeding. It had acquired jurisdiction of the person and subject-matter, and if error was committed, it could only be corrected by appeal.

In the ease of Jones v. The Mayor (37 Hun, 513), where this question of jurisdiction was raised by the present defendant, the court said:

“ The court, as it now appears, if this fact was before it, erred in the application of the statute, but there was no such want of jurisdiction as would justify the ruling that the proceedings themselves are void. An error on the part of the court in the administration and enforcement of the law will not be attended with this result. (People ex rel. Reynolds v. Brooklyn, 49 Barb., 136, 141.) It is only where there is an absence of jurisdiction, either over the party or the subject-matter, that judicial proceedings can be held to be inoperative in another action. The remedy * * * is by way of appeal. * * *
The defendant was brought before the court in the plaintiff's proceeding to .answer the application, and it had authority to hear it under the provisions of the statute. It accordingly had jurisdiction over the party and the subject-matter, and made the order upon a state of facts which was deemed to bring the application within the scope and extent of the statute. It is now too late to question its authority.”

If the court had acquired jurisdiction in the case cited, it had also in the proceedings now under consideration. It seems to us that the judgment in the proceedings under the statute denying the plaintiffs application are a bar to the present action, and that parol evidence cannot be admitted in this action to impeach that record.

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

Brady and Daniels, JJ., concurred.

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


text:
    JAMES W. COOKE and LYDIA COOKE, Respondents, v. THE UNDERHILL MANUFACTURING COMPANY, Appellant.

      Sale of a chattel —guw'anty that it will give satisfaction or be removed — user thereof, by the purchaser, after a direction given by him to remove it, not evidence of acceptance.

    Where the vendor of a steam engine has guaranteed that it will give satisfaction and has agreed, in case it does not, to take it out, and after the engine has been in use for some six months the vendor is directed by the purchaser to remove the-engine on the ground that it does not give satisfaction, which request the vendor fails to comply with, it is not proper for the court, in an action brought to recover the purchase-price of the engine, to submit to the jury the question whether a subsequent user of the engine by the purchaser was of such a character as to-constitute an acceptance thereof, there being nothing else shown, except such user, to establish an acceptance.
    Appeal by the defendant, the Underhill Manufacturing Company, from a judgment, entered in the office of the clerk of the county of New York on the 25th day of November, 18S9, after a. trial before the court and a jury at the New York Circuit, at which a verdict was rendered for the plaintiffs in the sum of $2,115.80.

      James Dunne, for the appellant.

      Ohas D. Baker, for the respondents.
   Van Brunt, P. J.:

This action was brought to recover for an engine proposed to be furnished, delivered and set up by the plaintiffs for the defendant. Under the contract the plaintiffs were to build the foundation, tile-defendant to do the excavating, filling or piling that might be-necessary to secure a firm sub-foundation. The plaintiffs guaranteed this engine to be built in the very best manner, and to be as durable and economical as any automatic engine. In short, to use their own language, “We guaranteed to give satisfaction or to take it out at our expense.” The engine was put in and started in April, 1887. Certain complaints having been made as to the engine, tests were made, and on the 28th of November, 1887, the defendant wrote that the engine was not giving satisfaction, and the plaintiffs were asked to remove it. On the thirtieth of November the plaintiffs, were again asked to remove it, and, without considering in detail. the evidence produced upon the trial, it is sufficient to say that up to this time it was conceded that the engine had not been accepted.

Other evidence was introduced showing that subsequent to that time the engine was used by the defendant, and the question submitted to the jury was whether this user was of such a character as ■constituted an acceptance of the engine. The learned court was asked to charge the jury that, if they found that the defendant never intended to and did not, in fact, accept the engine, then their verdict should be for the defendant. This the court refused to charge except as it had charged, leaving the question as to whether there was an implied acceptance still for the jury to determine.

We think, upon the conceded facts of the case, that there was no such question which could be submitted to the jury. On the 28th •of February, 1888, the engine was absolutely rejected by the defendant,- and if they had a right at that time to reject, then there never had been an acceptance. We think that an examination of the ■correspondence shows that not only had there never been an accept•ance up to that time, but that the plaintiffs so understood it. On the 10th of February, 1888, the plaintiffs wrote, “We are quite anxious to know what decision you have come to about the engine.” If it had already accepted the engine, what decision could the ■defendant come to in respect to the engine which would be of any interest to the plaintiffs ?

It is clear that at the time of writing that letter the plaintiffs did not understand that the defendant had accepted this engine. On the 21st of February, 1888, the defendant wrote, “ We have no reason to change our views expressed in our letter of November 30,1887,” up to which time it is admitted there had been no acceptance. “As you are aware, the engine has remained at Franklin at your request. The sooner you can have it removed the more agreeable it will be to us.” What is the answer of the plaintiffs? On the 25th of February, 1888, they write, acknowledging the receipt of this letter of thetwentyfirst, “ Before taking any decided action we want to make a statement ■of the case as it appears to us, and will endeavor to be as brief as possible. We have no hesitation in saying, what you, no doubt, already have inferred, that we do not want the engine to come out, and this for various reasons',” stating them. “ There are two reasons why the ‘engine does not satisfy you, and for neither of these should we be held responsible.” And then follows an argument to show that, they should not be held responsible for those reasons. And the-plaintiffs claim that it is not fair, in view of all the facts, that they should be held to a technical interpretation of the promise that the-engine should be entirely satisfactory to the defendant. And the letter closes expressing the hope that a consideration of the case, as above stated, may lead you to look upon the matter in a light more favorable to us. If, however, you are fixed in your determination, there is one preliminary point which should be understood. If we admit (which we do not),' that we must take the engine out under your instructions, what is to become of the foundation ? ”

There is not a" single pretense in this correspondence that the-plaintiffs understood that the defendant had accepted this engine, or that it had not a right still to reject it, if it did not comply with the contract. The phrase “ If we admit (which we do not), that we must take the engine out under your instructions, what is to become of the foundation ? ” was a dissent from nothing except that the engine could be taken out if the defendant desired, whether it complied with the contract or not. There was no pretense that it could not be taken out if it did not comply with the contract. And there-was no pretense that the defendant had no right to claim that it could be taken out because they had accepted it. Upon the sanm day the defendant writes that it does not comply with the contract and that it was not satisfactory; and on the twenty-eighth that the-engine was subject to the plaintiffs’ order and risk.

In view of this correspondence, it is difficult to see how the mere user of the engine during this period could be or was looked upon by either of these parties as an acceptance thereof. In fact, up to the very time when the correspondence ceased and the user of the engine ceased, it was conceded, upon the part of the plaintiffs in their letters, that there had been no acceptance, and they were negotiating with the defendant fcjr the purpose of getting them to accept it.

We think, therefore, that there was no question upon acceptance which could be submitted to the jury. The only question was as to-whether the engine complied with the contract or not, and the-defendant obliged to accept. This question does not appear to have been submitted to the jury; and we think that where both parties, assume that up to the time of rejection there was a right to reject,, ■and dealt with each other upon, that basis, the jury should not be allowed to come to a different conclusion and say, under the circumstances, there had been a sufficiently long user to constitute an acceptance.

There seems to have been error in refusing the request charged, and the judgment must be reversed and a new trial ordered, with ■costs to appellant to abide event.

Brady and Daniels, JJ\, concurred.

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


text:
    WILLIAM A. ROSS and NORWICH LOCK MANUFACTURING COMPANY, Respondents, v. CHARLES W. BUTLER, Assignee, etc., Appellant, Impleaded with JOHN H. BUTLER and Another.

      ■Contempt — a decree must be definite beyond any doubt in order to justify its enforcement by proceedings for contempt.

    By a decree, entered upon an accounting by a general assignee for the benefit of creditors, it was adjudged that a certain sum was in the hands of the assignee, from which he was directed to pay to the several plaintiffs, or their attorneys in such proceedings, their costs and disbursements, including the sum of-dollars, fees of the referee, together with an additional allowance, said costs to. be taxed by the clerk of the city and county of New York; and, further, to pay to the assignee’s attorney his costs and disbursements to be taxed in like manner; to retain a specified sum for his commissions, and an additional ■amount of ten dollars costs, and then to divide the residue of the fund remaining in his hands among a list of 188 creditors, pro rata, and without preference, the amount of the claims of the creditors against the assigned estate being stated, but the amount which was to be paid to them not being determined.

      Held, that, under such circumstances, the decree would not be enforced by proceedings against the assignee as for a contempt.
    'That such proceedings will only be entertained, to enforce a judgment or decree which is definite and certain to such a degree that there can be no opportunity for ambiguity or doubt as to the precise thing to be done by the party proceeded against.
    ’That, in this case, the amount due to the creditors could not be definitely determined so that it could be specified in a commitment issued for the enforcement of ^he payment thereof.

      •Qiusre, whether, under any circumstances, the payment of money under a decree of this kind can be enforced by proceedings for contempt.

      Appeal by the defendant Charles W. Butler, as assignee, from an order made at a Special Term held in the county of New York on the 27th day of January, 1890, by which it was ordered and adjudged that the said Charles W. Butler was guilty of a contempt of court in neglecting and refusing to obey a judgment or decree of the court, entered in the above-entitled action on April 18,1889, and that such neglect and refusal have actually impaired, impeded and prejudiced the rights and remedies of the Norwich Lock Manufacturing Company, upon whose motion to punish the said Charles W. Butler for a contempt of court in refusing to obey said judgment or decree, such order was made.

      Lxicien Birdseye, for the appellant.

      G. Richards, for the respondents.
   Van Brunt, P. J.:

Without definitely passing upon the point whether, under any circumstances, an attachment could issue for the enforcement of a decree, entered iu an action similar to the one at bar, which is a matter of more than grave doubt (In re Hess, 48 Hun, 586), it is clear that, in the position in which this action was at the time the order appealed from was made, and from the nature of the order itself, the court had no power to make the same.

This action was brought to compel the appellant, as assignee under a general assignment for the benefit of creditors, to render an account of the estate coming into his hands, as such assignee, and to distribute the moneys remaining in his hands among the creditors entitled thereto. Certain proceedings having been had on the 16th of April, 1889, a decree was entered adjudging that a certain sum of money was in the hands of the said assignee, from which balance the assignee was directed to pay the several plaintiffs, or their attorneys, their costs and disbursements, including the sum of $-, the fees of the referee, together with an additional allowance, said costs to be taxed by the clerk of the city and county of New York. The assignee was further directed to pay to the defendant assignee’s attorney his costs and disbursements, to be taxed in like manner. He was then directed to retain a sum specified for his compensation as commissions, and also an additional amount of ten dollars costs, and was then directed to divide the residue of the fund remaining in his hands among a list of 133 creditors, pro rata and without preference, the amount of the claims of the creditors against the assigned estate being stated, but the amount which was to be paid to them not being determined.

If there is one thing which is well settled in reference to the power of the court to enforce by attachment its judgment or decree, it is that such judgment or decree shall be definite and certain; that there shall be no opportunity for ambiguity, but that the party proceeded against is to be adjudged to do a certain specific act; if it is to pay money, then to pay a specific sum of money.

In the case at bar who is to determine as to what amount in dollars and cents the moving creditors in this proceeding are to obtain ?

The referee’s fees have not been determined; the costs have not been determined; and the amount which each creditor is to receive has not been determined. This is all matter of calculation to be gone into after the amount of the referee’s fees is settled and the costs taxed. Who is to determine when these things have been legally and regularly done ?

In order that a commitment may issue under any circumstances, as already stated, the precise thing to be done by the party proceeded against must be stated in the judgment or order. When we come to examine the order adjudging the party in contempt, what do we find ? • It is that the appellant be punished by imprisonment as for a contempt unless within five days he pay to the moving-creditors or their attorneys the amount due under the judgment, together with ten dollars costs of these proceedings. Who is to determine the amount due under that decree — the moving creditors or the assignee ?

The appellant has not been directed to do any specific thing, and if a commitment were issued upon such an order, it would be impossible for the sheriff to determine when the appellant had conformed to its requirements.

It is absolutely clear that a party cannot be adjudged to be in contempt without definitely stating what he shall do in order to purge himself of the contempt. There is no such statement in this case. The court has not yet determined the precise amount which he is to pay to these various creditors, and, until it does, the appellant cannot be proceeded against by this class of proceeding.

But, by anything that has been said, we do not intend to intimate that, under any circumstances, the payment of money under a decree of this kind can be enforced by proceedings for contempt.

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

Beady and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.


text:
    ROBERT HARLAND and Others, Respondents, v. THOMAS HOWARD, Appellant.

      Arrest — how it must be made — abuse of the process of tha court — when an order of a/rrest will be vacated — right to protect one’s personal liberty.

    A private detective having forcibly detained a defendant, against whom an order of arrest had been issued,- until the sheriff of the county could arrest him, amotion was thereupon made to vacate the order of arrest and relieve the defendant from arrest upon the ground that the arrest as made was an abuse of the process of the court.
    Held, that the defendant should be released.
    In order that an officer shall be justified in the execution of civil process it is Decessary that the right of arrest shall be exercised within his jurisdiction, and that he has present with him his authority to make the arrest.
    A person has a right to protect his liberty by the use of all the force necessary to accomplish that result.
    Appeal by the defendant Thomas Howard from an order, entered in the office of the clerk of the county of New York on February 21,. 1890, denying the defendant’s motion to vacate an order of arrest granted in the above-entitled action, and the arrest of the defendant thereunder, upon the ground of connivance, force and fraud in effecting the arrest.
    The motion was made at the New York Special Term, where, after hearing the matter, the motion was dismissed,' with costs.

      W. G. Gwynor, for the appellant.

      G. De F. Lord, for the respondents.
   Van Brunt, P. J.:

The ground upon which this motion is based is that one McDonald, a private detective, forcibly detained the defendant until the sheriff of Kings county could arrest him. It seems to us that this claim is established beyond all question. It is true that it is claimed that the plaintiffs’ affidavits by preponderance of proof show that no such thing had occurred, and that both McDonald and Yaxley, the agents of the plaintiffs, swear that no compulsion whatever was used and no false pretenses made, but that the defendant went with them voluntarily to the Fulton street police station, and apparently was very anxious to have the officer in charge detain him until the sheriff could come to arrest him; and that after the officer in charge refused to detain him, and he was proceeding with them voluntarily to the jail, he broke away, tripped up McDonald, striking him so that he fell; that he was thereafter caught by two policemen, arrested, and upon a charge by McDonald held at the station-house for assault. A more improbable story has seldom come under the consideration of the court. It bears upon every part of it the stamp ■of falsity. If Howard was willing to go with these people, why go to the station-house and ask the sergeant in charge to hold him until the sheriff could come there to arrest him ? If these parties were not- detaining him, why was it necessary for the defendant to trip McDonald up and knock him down in order to get out of his custody ? The conceded facts upon the part of McDonald and Yaxley prove, beyond all question, that they were guilty of a gross abuse of power, such as private detectives are altogether too prone to indulge in, and for which they should be severely punished. This man, undoubtedly, represented himself to. be an officer, took forcible possession of the defendant, compelled him to go with him and endeavored to get him held at the station-house until the sheriff could arrest him. If that is not an abuse of any power ever conferred upon him, it is difficult to see how any power could be abused. It is sought to sustain this arrest upon the ground that because the detention of the defendant upon the crime of an assault resulted in his arrest in this action, that, therefore, this motion should not be granted. But when we find from the very facts of the case, beyond reasonable doubt, that without the slightest semblance of authority this man McDonald was exercising dominion over the defendant for the purpose of subjecting him to arrest, no such consideration can prevail.

It is said that Howard was convicted of this assault. But how the magistrate could ever have been induced, under the facts appearing in this case, to convict Howard of assault it is difficult to imagine. But that in no way deprived Howard of the protection of the law; nor could he, therefore, be permitted tobe kidnapped for the purpose of bringing him within the power of the sheriff to serve an order of arrest.

It is urged that even if McDonald, under these circumstances, was in Brooklyn, only a private citizen, and had forcibly held the defendant until the sheriff arrived, that would be no reason why this court should ignore and defeat its own process by discharging the defendant. It must be recollected that a private citizen has no right to interfere with the liberty of another unless a felony has been committed in his presence, and the person whose liberty is interfered with is guilty of the crime. No such condition of affairs existed in this case. It is necessary, in order that an officer shall be justified in the execution of a civil process, that the right of arrest shall be ■exercised within his jurisdiction, and that he have present with him his authority to make the arrest. And it is a familiar principle that a man has the right to protect his liberty by using all the force necessary.

It is apparent from the conceded facts that these two men seized forcibly upon the defendant for the purpose of subjecting him to the execution of this process. We do not think that such procedure can be tolerated in this court. The motion to discharge him from arrest should have been granted, and the order of arrest vacated, because of the abuse of the process.

The order should be reversed, with ten dollars costs and disbursements, and the order of arrest vacated, with ten dollars costs.

Bradt and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the order of arrest vacated, with ten dollars costs.


author: Brady, J.:

text:
    CLARA CARTER, Appellant, v. BRENT S. H. GOOD and the CARTER MEDICINE COMPANY, Respondents.

      Rule governing ihe granting of an order for the examination of a party before trial — relaxed in case of infancy, etc.

    The strictness of the rule, which governs the granting of an order for the examination of a party before trial, will be relaxed when-a relation of trust and confidence has existed between the parties to the action, especially if the party asking for the examination was an infant at the time that the transaction to be investigated occurred.
    Where the information desired is seemingly important for the proper presentation of the cause of action alleged in the complaint, and necessarily wholly within the knowledge of the defendant, or more within his knowledge than that of the-plaintiff, an order for the examination of the defendant should be granted.
    Appeal by the plaintiff Clara Carter from an order, entered in the office of the clerk of the county of New York on the 24th day of April, 1890, vacating an order theretofore granted for the examination before trial of Brent S. II. Good, personally and as a director and trustee of the defendant, the Carter Medicine Company.
    The order was granted at a Special Term of the Supreme Court,, held in the county of New York on the 24th day of April, 1890.. As stated in the opinion at Special Term, the only reason given in the affidavit, upon which the application for the examination was-made, for having the examination before the trial, was that the attorney for the plaintiff “ does not know whether the said Brent Good will be within the jurisdiction at the time of said trial, and whether, if said Brent Good is then within the jurisdiction, his attendance at the trial can be obtained.” This affidavit was held at the Special Term to be insufficient.
    . William W. GooJc, for the appellant.

      B. 3. McGrath, and Jno. 3. Bird, for the respondents.
   Brady, J.:

The defendant Good occupies towards the plaintiff a fiduciary relation. He is the administrator of her father’s estate and her guardian. In the former capacity he came into possession of 100 shares of stock of the Carter Medicine Company, sixty shares of which were improperly disposed of by him with the ultimate design of owning them himself, a result existing and accomplished as suggested. The price received for them was trifling it is alleged, in view of their real value, the dividends having enormously increased year after year. The affidavit on which the order was obtained for the examination of the defendant Good is not a fulfillment of the essential requisites in ordinary cases under the decisions bearing upon the subject. (Williams v. Folsom, 52 Hun, 68; 54 id., 308; Jenkins v. Putnam, 106 N. Y., 272.) But it is supposed that in view of the relations existing between the defendant Good and the plaintiff, who is his cestui qtie trust, .and entitled to a full and truthful disclosure affecting the corpus of the estate, the general rule does not apply. It is enough that such relation is shown to call into being the inquisitorial power of the court, in order to determine whether the act complained of, namely, the 'sale of sixty shares of stock, was made in fraud of the plaintiff’s rights, and in violation, if so, of the double duties incumbent upon the defendant Good by reason of the dual capacities in which he stood as' administrator and guardian. The learned justice in the court below gave no heed to this contention, for aught that appears in his opinion, but it was worthy of serious consideration and must receive it here. The rule with regard to the examination of a party before trial is one of discretion. (Herbage v. City of Utica, 109 N. Y., 81.) The application for the order has become one addressed to that legal element. It is, therefore, flexible and must be adapted to and controlled by the facts and circumstances of each case, considered with reference to the relations existing between the parties ; and, therefore, a strictness which would be applied between ordinary suitors would necessarily yield when the relation of trust and confidence exist between the parties, especially if one were an infant, and, therefore, to a certain extent, helpless when the transactions to be investigated occurred. Persons in a fiduciary character are equitably liable to discovery. (Bray’s Pr. on Discovery, 30; Sichel & Chance on Discovery, 37.)

If it appear, therefore, from the nature of the transactions set forth, coupled with the allegations in the complaint relating thereto, and making them apparent, the information desired is séemingly important for the proper presentation of the cause of action asserted and necessarily wholly within, or more within the knowledge of the defendant than the plaintiff, the order should be granted and main-tamed. This would not be recognizing a procedure in the nature of a fishing expedition or suggest such a forbidden performance, but a meritorious, application founded in justice and due to its proper administration. This view is sustained by the case of Dyett v. Seymour (19 N. Y. St. Rep., 765), in which Yan Brunt, P. J., said : “ The defendants were Eno’s agents. He had no personal knowledge as to these transactions, and necessarily relied upon the good faith and honesty of such agents; and where he has good ground to suspect such good faith he should be afforded an ample opportunity for investigation.”

The application contains the following statement as to the necessity of the examination sought:

YII. That the testimony of said Brent S. H. Good, personally and also as said trustee, is material and necessary for the following reasons: The plaintiff, in order to prove that said Brent S. H. Good has owned and controlled said sixty shares of stock ever since the latter part of the year 1884 up to the present time, must have the testimony of said Brent S. IT. Good as to who received and retained the $86,140 dividends, or any part thereof, declared on said stock during that time; also what price was paid by said Brent Good to said McIntosh for said stock or any part thereof on July 3, 1889 ; also what relations, financial and otherwise, existed between said Brent Good and said McIntosh; also what banks were the depositories of the moneys of said McIntosh; also who advanced to said James W. Good the money with which he purchased twenty of said shares of stock, if so purchased by him; and what relations exist between said Brent Good and said James Good in regard thereto, and in regard to many matters generally, and who receives the dividends thereon; also as to the business relations that have existed or now exist between said Brent Good and one George M. Hard, who has made affidavit in this case that said Chichester purchased said stock for said Hard; also the date when said stock was transferred to said Brent Good, and as to whether said stock now stands m the name of said Good on the books of said company, and to whom the last dividend on said sixty shares of stock was paid. Neither the plaintiff nor deponent knows nor has any means of ascertaining the facts referred to in the preceding sentence. Said facts are within the knowledge of said Brent Good, personally and as said trustee. The plaintiff has no way of ascertaining and proving said facts, except by the testimony of said Brent Good, personally and as trustee. The plaintiff cannot safely proceed to trial until she has taken the deposition of said Brent Good, personally and as trustee, in regard to said facts, and that said facts are material and necessary to be proved upon the trial herein. The present application for an order to examine the said Brent Good, personally and as said trustee, is made in good faith to preserve the testimony of the said Brent Good, personally and as the said trustee expected to be taken under the said order; and plaintiff intends to use such testimony upon the trial of the action and otherwise as maybe necessary. Said testimony is material and necessary for the plaintiff for use on the trial of this action. Deponent does not know whether the said Brent Good will be within the jurisdiction at the time of said trial, and whether if said Brent Good-is then within the jurisdiction his attendance at the trial can be obtained.

This seems to be sufficient to justify the order asked for under the circumstances of this case in the exercise of a sound discretion.

Order reversed, with ten dollars costs and disbursements of the appeal.

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

Order reversed, with ten dollars costs and disbursements of the appeal.


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    EDWARD ROUGET, Respondent, v. THEODORE HAIGHT, Appellant, Impleaded, etc.

      Motion to make a pleading more definite and certain— or for a bill of pa/rticvXars— which is the proper remedy.

    The remedy afforded by an application to the court to make the averments in an answer more definite and certain can only he resorted to when the allegations thereof are so indefinite that the precise nature of the defense is not apparent.
    Where the defense is definitely stated, although the statement thereof is wanting in details, the remedy lies in an application for a hill of particulars.
    Appeal by the defendant Theodore Haight from an order, entered in the office of the clerk of the county of New York on the 21st day of March, 1890, after a hearing at Special Term, directing said defendant to make certain allegations in tlie tenth and eleventh paragraphs of his answer more definite and certain.
    The action was brought against the defendants to recover $7,500 upon a sealed instrument, which is set out in full in the complaint. The answer of the defendant Theodore Haight alleges as a counter-claim that it was agreed between plaintiff and himself that plaintiff should advance to defendant sums of money, not to exceed $10,000, .to be used by defendant in dealing in oil and stocks'; that all purchases of such oil and stocks, and all dealings therein, should be at defendant’s risk and in his name, and that he should do all the necessary work in and about the same, and that plaintiff should, as his profit, receive fifteen per cent on the amount advanced by him; that, relying upon this agreement, defendant made certain purchases of oil and called upon plaintiff to advance the money to pay for the same, which was refused ; that defendant was damaged by such refusal, being unable to complete his purchase as he had contracted to do.
    The order appealed from directs defendant to amend his answer by showing whether this agreement was a written or verbal one, and to make the eleventh paragraph of the answer more definite and certain by stating the dates of purchase, the names of the sellers and the quantities of oil purchased, and by showing wherein defendant suffered damage, i. e., the items of damage.

      Wyatt & Trimble, for the appellant.

      Smnuel Cohen, for the respondent.
   Brady, J.:

The defendant was not obliged to state whether the agreement upon which his counter-claim rests was in writing or not. In the language of the Court of Appeals, it was sufficient for him to allege the contract and breach without any specification of the evidence thereof. (Tuttle v. Hannegan, 51 N. Y., 686.) The plaintiff in that case sought to recover damages for a breach of a contract, and on the trial offered in evidence a written instrument in the form of a bond containing the agreement. It was objected that the action should have been brought thereon, but the court admitted it. It was held that no error was committed, and for the reason stated.

The purchases and sales alleged to have been made under the agreement are not stated in detail, but, nevertheless, the cause of .action is stated with sufficient definiteness to make apparent what the defendant claims. It is stated, generally it is true, and in such .a mode as to show that there are items constituting it. That, however, does not give the right to the remedy which may sometimes be invoked of making the averment more definite and certain. It can ■only be sought when the allegations are so indefinite that the precise nature of the charge or defense is not apparent. Here there is no doubt of the nature of the defense. The plaintiff is not, however, remediless, inasmuch as he may ask for the particulars and obtain them. (Tilton v. Beecher, 59 N. Y.,176.) In this case the border line between these remedies seems to have been reached, and illustrates how slight a difference may exist between the conditions requiring the application of the one or the other. It appears to be settled that if the charge or defense be definitely stated, although the statement involves details, it is sufficient to put the party to an .application for a bill of particulars and compels him to resort to that remedy, although the result of either application would be the .same. (See Jackman v. Lord, 30 N. Y. St. Rep., 507; Tilton v. Beecher, supra.)

The order appealed from should, for these reasons, be reversed, with ten dollars costs and the disbursements of this appeal.

Yan Brunt, P. J., and Daniels, J., concurred.

Order reversed, with ten dollars costs and the disbursements of this appeal.


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    GEORGE I. LANDON, as Receiver of the BOWLING GREEN SAVINGS BANK, Respondent, v. JAMES VAN ETTEN and SMITTER V. TRIPP, Appellants.

      Additional allowance, wherre a judgment is lessfavorable than an offer.

    Where, upon the trial of an action, it appears that the defendant has made an offer of judgment more favorable to the plaintiff than his recovery, the defendant is. not only entitled to recover his costs but may be given an additional allowance..
    Appeal by the defendants from an order, entered in the office-of the clerk of the county of New York, and dated the 4th day of February, 1890, which order denied the defendants’ motion for an additional allowance in the above-entitled action.

      L. GodJcin, for the appellants.

      A. Cameron, for the respondent.
   Brady, J.:

The defendants’ offer of judgment was better than the plaintiff’s recovery. They are, therefore, the prevailing party and entitled to-costs. The learned judge at Special Term thought them entitled also to an additional allowance, but felt constrained to refuse to grant it. from want of power, his judgment in that respect yielding to the decision made in Magnin v. Dinsmore (47 How. Pr., 11) to that effect. That case does not, however, discuss the question which presents itself in limine, namely, what is meant by an allowance ?’ Justice Woodruff, in Brady v. Durbrow (2 E. D. Smith, 78, 89), arrived at the conclusion, upon examination of the question, that the allowance was of additional costs, and that the phrase must be so-interpreted.

This result is satisfactory, the chapter relating to the subject being entitled in the Code Taxing amount of costs,” and articles 1 and 2 under the title are Sums allowed as costs ”— “ Taxation of costs.” Whatever is given by way of indemnity under the statute is within the designation costs, and being costs, the party entitled to them, as provided by the Code, is also entitled to those given in addition to the established sums. If the prevailing party, for example, is entitled to costs, an allowance, meaning additional costs, may be given him to such extent as may be determined on a proper application showing the right to them to exist.

It is unnecessary, however, to pursue this subject, inasmuch as the-question has already been considered and determined by this court in Commissioners of Pilots v. Spofford (3 Hun, 57). The proposition asserted and maintained by that case is, where either party is entitled to costs, such costs are not restricted to those given expressly, but include the allowance if a proper case be made for them. This-decision was predicate of the sections of the old Code, which are, however, substantially the same as those of the present Code. The-order appealed from should, therefore, be reversed and the motion be remitted for consideration. Ordered accordingly, with ten dollars-costs and disbursements of this appeal. In expressing these views we must not be understood as intimating an opinion as to the propriety of granting any allowance.

Yan Brunt, P. J., and Daniels, J., concurred.

Order reversed, with ten dollars costs and disbursements, and the-motion remitted for consideration.


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    JOSHUA F. PAGE, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and the CITY OF BROOKLYN, Appellants.

      Physician and patient — questions ashed of a physician based upon the patient’s testimony.

    In an action to recover damages resulting from personal injuries tlie plaintiff called a physician, by whom he had been examined subsequent to the injuries, who was-asked this question: “ Did you hear his (plaintiff’s) testimony upon the witness-stand to-day? ” To which the witness replied, “Most of it; yes, sir.” The witness was then asked: “ Take such a fall as he describes here, resulting from a collision of two cars, and of the symptoms following that fall, he having theretofore been a sound and healthy man, can you state with reasonable certainty that the consequences that have flowed are natural and usual?”
    Held, that the question was incompetent.
    That as the witness had heard only ‘ ‘ most of ” the plaintiff’s testimony, his answer to the question was not founded upon all that the plaintiff had said, and was-not a hypothetical question, which was the only theory upon which it could have been admissible.
    ‘That a physician attending a patient may state facts and circumstances, and may. if an expert, be asked for his opinion upon a supposed state of facts presented in a question, but he should not be called upon to state whether the condition of the patient is the natural and usual consequence of the accident described.
    Appeals by the defendant, the City of Brooklyn, and by the defendant, the Mayor, Aldermen and Commonalty of the City of New York, from a judgment, entered in the office of the clerk of the county of New York on the 21st day of December, 1889, in favor of the plaintiff; and also from an order, entered in said office on the 24th day of December, 1889, denying defendants’ motion to set aside the verdict and for a new trial, made on the minutes of the judge before whom the action was tried.
    The action was tried at the New York Circuit ■ before the court and a jury, and a verdict was rendered thereat in favor of the plaintiff for the sum of $15,000.

      Thomas P. Wickes, for the appellants.

      Isaac S. Gatlin, for the respondent.
   Brady, J.:

This action was brought to recover damages sustained by personal injuries resulting from the defendants’ carelessness. On the trial the plaintiff called Dr. Olcott, as an expert, by whom he had been examined in reference to his condition subsequent to the injuries received. The witness stated several examinations and the condi. tion in which he found the plaintiff on each of such occasions. He was then asked whether he received a statement from him as to how he fell in the car when the injury was received, to which he answered affirmatively. The witness was then asked this question: Did you hear his testimony upon the witness stand to-day ? ” to which he responded by saying, Most of it; yes, sir.” He was then asked the following question: Q. Take such a fall as he describes here, resulting from a collision of two cars, and of the .symptoms following that fall, he having theretofore been a sound and healthy man ; can you state, with reasonable certainty, that the consequences that have flowed are natural and usual ? ”

It will have been observed that the question is neither hypothetical in any respect nor founded upon all that the plaintiff said, but, “ most of it,” which leave to conjecture how much of it the witness, considered to be “ most of it,” and whether if he had heard the-whole of it there would have been any qualification of his answer. It Avas duly objected to but Avas allowed after exception. TheansAver Avas predicate of the plaintiff’s statement only so far as the witness had heard it, but Avas not in form such as allowed a party to-attain the result, in form at least, by adopting a hypothetical question, and this is the extent only to which such an inquiry is allowed. If it were otherwise, the witness would be, to a certain extent at least, as he Avas here, allowed to usurp the functions of the jury, who alone-are to trace effects to the cause as shown by competent proof. For example, a collision of cars is proved, and a person in one of them, who before the collision is bodily sound, is found with a broken limb- or serious wounds. The injuries are Üx&iijprima faoie the effect of the collision, but the jury are to determine that question on the evidence, and hence the examination of the medical attendant is always as to what was the condition of the patient after the accident. He is not called upon to state whether that condition is the consequence natural and usual of the collision such as described. He may state-facts and circumstances, but not conclusions, especially when founded upon evidence heard only in part, but may if an expert be asked for his opinion upon a sujiposed state of facts presented in a question. The question itself, here, considered as such, is radically defective,, for the reason that it assumes that the consequences stated flowed from the collision; when, in legal effect, it was wholly immaterial whether the consequences were natural and usual if they were present and existed, and whether they were or not was a question for the jury.. The cases relating to this line of examination carefully preserve the rights of the party to be affected by it from any infraction of the province of the jury as indicated by the rule which is positive and unyielding, that questions kindred to the one discussed must be put hypothetically, or its equivalent, and thus leave the facts stated in it to be found by the jury before the evidence elicited can be applied. (See Uransky v. D. D. and B. R. R. Co., 7 N. Y. St. Rep., 395; Gregory v. N. Y., L. E. and W. Ry. Co., 8 N. Y.. Supp., 525; Turner v. City of Newburgh, 109 N. Y., 309.)

For these reasons the judgment appealed from must be reversed .and a new trial ordered, with costs to abide the event. Ordered .accordingly.

Yan Brunt, P. J., and Daniels, J., concurred.

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


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    LOUIS FLEISCHMANN, Plaintiff, v. LIPPMAN TOPLITZ, Defendant.

      Xandlord and tenant — destruction of the demised premises, a stable, by fire — the tenant must remove the cw'casses of the horses and the landlord the debris,

    A lessee of premises in the city of New York occupied the same under a lease, containing a covenant on his part to surrender the premises at the expiration of the term in good order and repair, ordinary wear and tear and injury by the elements excepted, and also at his own proper costs, charges and expenses, to comply with all the rules, orders and regulations of the department of buildings and the board of health of the city of New York.
    During the continuance of the lease the premises were totally destroyed by fire, and a number of horses stabled upon them were destroyed. Immediately after the fire a notice was served upon the owner of the premises by the city authorities requiring him to remove the dead carcasses of the horses which had become noisome.
    In an action between the landlord and tenant to recover the expense of removal of the carcasses and debris after the Are:

      Meld, that the tenant was bound to remove the offensive carcasses of the horses in order to comply with his agreement to leave the premises in good order, and that the landlord was bound to remove the debris, so far as it was necessary, to enable the tenant to get at the carcasses.
    Exceptions ordered to be heard in the first instance at the General 'Term, after a trial at the New York Circuit, at which a verdict was rendered in favor of the plaintiff for the sum of $609.22, and judgment was ordered, in the meantime, to be suspended.

      A. J. Dittenhoefer, for the jilaintiff.

      A. B. JDyett, for the defendant.
   Brady, J.:

The plaintiff was the lessee of the premises Nos. 43 and 45 West Thirteenth street, under a lease for five years, which would expire -on the 1st of November, 18SL

On the 25th of July, 1887, the premises were totally destroyed by fire. They were used by the lessee as a stable, and by the fire a number of horses which were on the premises at the time it occurred were destroyed, and formed a part of the debris. Immediately after the fire a notice was served upon the defendant, as owner of the premises, requiring him to remove the same, the object of which .seems to have been to dispose of the dead carcasses of the horses, which would become noisome.

The parties hereto had a conversation in regard to that notice, and an understanding was arrived at between them by which the plaintiff was to proceed with the removal, and the defendant to repay him, provided he, and not the plaintiff, was bound to make the removal. The plaintiff proceeded to do as contemplated, and then insisting that the defendant was liable to refund the amount expended, and the defendant denying such obligation, this action was brought. The lease under which the plaintiff held, contained a covenant on his part to surrender the premises at the expiration of the term in good order and repair, ordinary wear and tear and injury by the elements excepted, and also at his own proper costs, charges and expenses, to comply with all the rules, orders and regulations of the department of buildings and the board of health of the city of New York. The defendant insists that, under both of these covenants, the plaintiff was bound to remove the carcasses mentioned. The plaintiff, on the contrary, contends that no such obligation was imposed.

The case is novel, and examination and research has not revealed a kindred case or guide to its decision on authority. The result of .a consideration of all the facts and circumstances has resulted, nevertheless, in this conclusion, namely, that the obligations springing from the relations existing between the parties are several. The plaintiff was bound to remove the offensive carcasses from the ground under his agreement to leave the premises in good state and condition, subject only to the impairment of reasonable use; and the defendant was equally bound to remove the debris to enable the plaintiff to get at the same. This is a just and equitable disposition of the controversy. The general debris being a part of the premises rented, is the landlord’s and subject to his control, the term having terminated. The carcasses, connected as they were with the occupation of the premises by the plaintiff and his business, the-animals of which they were the remains, having been employed therein, are his.

The different amounts expended for the removal of the carcasses, and debris should, therefore, be paid by the parties, the plaintiff paying for the former and the defendant for the latter, namely, the plaintiff eighty-three dollars and forty-three cents, the defendant $465.50, these amounts appearing to be undisputed on the record. No doubt is entertained that the plaintiff abandoned the possession of the premises after the fire, and that such was the understanding of the parties upon which they acted, and none of the exceptions, which have been fully examined, having any value, the only question requiring particular examination is the right of the plaintiff to recover for money expended for the defendant, and if so how much ?

For these reasons the judgment must be modified as suggested by deducting eighty-three dollars and forty-three cents from the judgment and the interest charged thereon, and affirmed as to the balance, without costs to either party.

Yan Brunt, ±\ J., and Daniels, J., concurred.

So ordered.


author: Brady, J,:

text:
    LOUISA WILLIAMS and Others, Respondents, v. SAMUEL D. FOLSOM and Others, Appellants.

      Motion to make a complaint move d&finite and certain, not granted after answer.

    An application to strike out certain allegations of the complaint, or to make them more definite and certain, will not be granted after an answer to the complaint has been served, nor in the absence of some evidence that the retention of such allegations in the complaint will embarrass the defendants in their defense.
    Appeal by the defendants from an order, entered in the office of the clerk of the county of New York on the Ith day of March, 1890, by which it was ordered that the motion on the part of the defendants for an order that various portions of the amended complaint specified in said notice of motion be stricken out, or in default thereof .to compel plaintiffs to make said amended complaint more definite and certain, be in all respects denied, with costs to be paid by the defendants to the plaintiffs.
    Davenport, Smith <& PerMns, for the appellants.

      Carter, Hughes dfc Gravath, for the respondents.
   Brady, J,:

This action was brought to recover the sum of $10,000, to which the plaintiffs considered themselves entitled, by reason of the treacherous conduct of the defendants, who, as their agents, had induced them to sell certain real estate for a sum less than its valué in order to resell the same at an advanced price for their own benefit, and which they accomplished by improper representations and the use of a vendee who was connected with the fraudulent scheme. The allegations in the complaint, designed to make this apparent, are, in part, objected to, and the defendants seek to have them striken out in the first place or made in some respects more definite and certain. The allegations, as a whole, are not, nor is any part of them, irrelevant. They constitute a full exposition of the plaintiffs’ case, giving, perhaps, more details than would be necessary, but, nevertheless, germane to the subject, and may be items of importance in establishing the cause of action set up. When this reasonably appears they' cannot be properly stricken out as irrelevant, more especially if the action be one in which fraud is alleged. Aside from this, the disposition of a motion made for such a purpose is discretionary and should be granted only where no doubt exists of the irrelevancy charged. This is the rule, although the pertinency of some of the allegations is not directly apparent; but there is a possibility that they may become so in explanation of or as eonT nected with the history of the subject-matter of' the litigation. There is still another rule applicable to such a motion, and that is, there must be some evidence that the retention of the allegations would embarrass the defendants in their defense — something shown establishing harm or injustice. (Lugar v. Byrnes, 15 Civil Pro. R., 72.) There is still another objection to the success of this motion, namely, that the defendants have answered. An answer can have no other effect in reference to such amotion than to waive the right to make it. This must apply whether the complaint be amended or not if the answer remain. The issues arq framed when that pleading is put in and the preliminaries are closed.

The allegations are not subject to the charge of indefiniteness. They are definite and certain. There can be no misunderstanding as to what is meant by them, and the evidence to sustain them cannot be called for. It may be said, indeed, that the defendants well know what is charged against them and are desirous of ascertaining, if they can, the particulars of the proof by which they will be established; besides’allegations of fraud are not required to be stated with great particularity. The array of facts and circumstances, but not minutely, is sufficient. (Passavant v. Cantor, 21 Abb. N. C., 259, 264.) The court may, in some instances, direct, on a proper motion therefor, a detailed statement, but not on such a motion as was made herein in such a case as this. A general statement, if comprehensive and complete, although it may in the proof involve details, cannot be arraigned as indefinite or uncertain.

For these reasons the learned judge in the court below properly ■denied the motion, and it should be affirmed, with ten dollars costs nnd disbursements of this appeal.

Yan Brunt, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements of this ■appeal.


author: Brady, J. Van Brunt, P. J.: Daniels, J.

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    In the Matter of the Petition of the METROPOLITAN ELEVATED RAILWAY COMPANY, Relative to Acquiring Title to Certain Real Estate in the City and County of New York. In re BACHE and Others.

      Pi'oceedings to condemn land under chapter 140 of 1850 — an appeal therein must he tahen to the General Term, and not to the Special Term.

    In proceedings, instituted under tlie general railroad act (chap. 140 of tlie Laws of 1850), for the condemnation of land, either party, after the report of the commissioners is confirmed, desiring to appeal, must appeal to the General Term of the Supreme Court.
    Although section 18 of chapter 140 of the Laws of 1850 provides that such appeal shall he heard hy the Supreme Court at any General or Special Term, such.appeal must be governed by the form of procedure adopted by the court, and must conform therewith, although such procedure is not declared by any formal rule. ■
    (Daniels, J., dissenting.)
    The system of review adopted throughout the State in such cases requires that the appeal should be taken to the General Term.
    Appeal by Simon Bache, Solomon B. Ulman, Siegmund J. Bache, George W. Dean and Edmund R. Williams, to the General Term .of the Supreme Court of the first department, from an order, made at Special Term and entered in the office of the clerk of the city .and county of New York on the 25th day of February, 1S90, denying a motion that the appeals in the above-entitled matter be heard at a Special Term, on the ground that such appeals should be heard at a General Term of the court, in accordance with the general rules of practice, or in such a manner as the said General Term may direct.
    An appeal was taken at first to the Special Term from the .appraisal and report of the commissioners, which was filed in the office of the cleik of the county of New York on the 13th day of August, 1889, and confirmed by an order entered in said office on the 28th day of September, 1881.

      8. W. Dexter, for the land owners, appellants.

      Demies efe Rapallo, for the petitioner, respondent.
   Brady, J.

The general railroad act of 1850, chapter 140, by section 18, provides that in proceedings of this character either party may, after the report of the commissioners is affirmed, appeal, and that such appeal shall be heard by the Supreme Court at any General or Special Term, a notice thereof being given according to the rules and practice of that court. The notice of appeal to be given is one of that proceeding and in accordance with the rules and practice of the court relating theveto. The appellant is not given the unconditional right to appeal to the General or Special Term of the court, but such of these tribunals as the court may designate for the hearing by its practice. It is enough to determine its mode of procedure therefor that a practice regulating it exists, although no formal rule declares it. The system of review adopted throughout the State requires an appeal to be taken to the General Term from the Special Term. The object in view is to secure the consideration of the subject involved by several minds, and this is so guarded that the judge from whose decision the appeal is taken cannot sit in review. The practice of asking one judge to review another is hostile to this system, which would be the effect of allowing such an appeal as pressed herein. The legislature, although using the woi'd “Special” in section 18 (supra), left the subject to the court, and the court has properly determined that the General Term must be sought when an appeal is demanded. The proforma confirmation does not relieve the appeal from the hostility suggested, inasmuch as the Court of Appeals vacated a judgment of the General Term of this department for the reason that one of its judges was sitting at chambers when the report of the referee in the action was confirmed pro forma. He knew nothing of the contents of the record and did not act upon them. It is not necessary, however, to extend these observations. The practice is settled and must be conformed to,, and it is that, in proceedings kindred to this, the appeal must be to the General Term and subject to the rules in regard to appeals which involve the printing. The methods regulating it are prescribed by Rules 32, 35, 40, 41 and 42, and must prevail. It is no greater hardship upon a landholder to subject him to these rules than any other suitor who invokes the appellate power of the court, although it may be said that these proceedings are often of such a. character that printing is a much greater necessity as an ally in the-examination of questions involved.

It may be said, in conclusion, that although this court has been required on numerous occasions to consider appeals in these proceedings from the Special Term, this is the first one in which the attitude has been taken which the appellants attempt to maintain.

For these reasons the order appealed from should be affirmed, with ten dollars costs and disbursements of this appeal.

Van Brunt, P. J.:

I concur in the conclusions arrived at by Mr. Justice Brady. An examination of the Code shows it is the policy of the law that wherever practicable appeals and all proceedings in the nature of' appeals should be heard at the General Term, and the practice in this district has been in harmony with this rule. It is undoubtedly true that the court at Special Term would have the power to hear this appeal, but the proper regulation of business in this district requires that the Special Term, overcrowded as it is, should not be burdened by these appeals when there is another branch of the ■court more accessible.

Daniels, J.

(dissenting):

The law of 1850, which has not since then been materially changed in its application to this case, has defined the proceedings which may be taken by a railway company to acquire the title to land for the purposes of its railway. It is summary, simple and inexpensive throughout. After providing for the appointment of commissioners to appraise and award the compensation to be made, it has provided for the confirmation of their report by the court. And when the requisite notice of the application for confirmation has been served according to the practice of the court, then the •court has no other alternative than to confirm the report. The merits of the decision made by the commissioners are not in any form to be considered on the application to confirm their .award. But, under the law, it must be at once confirmed. And when the order of confirmation has been recorded, and the compensation has been paid or deposited, then the company is entitled to enter upon the land, and to take possession of it and to use it for the purposes of its corporation during the continuance of its corporate existence. (Laws 1850, chap. 140, §§ 17, 18.) Whatever changes may afterwards take place in the adjustment of the compensation of the owner, the company will not be disturbed by them in its use and enjoyment of the land. The remedy of the owner, as well as that of the company for that object, is by a separate and distinct proceeding, which has been provided for by the succeeding parts of section 18 already referred to. They are in no form an appeal from one judge to another. For no question to be brought up by them can be included in the hearing of the motion on the part of the company to confirm the report. But they consist in an appeal from the decision of the commissioners, and on that appeal their report or the compensation may be set aside and a further hearing directed, either before the same or other commissioners. But that hearing will in no sense annul or disturb the previous confirmation of the report or the possession of tlie railway company, or the right secured to it to use the land for the purposes of its corporation. The two proceedings are entirely distinct. That to confirm the report being in the interest of the company,, and that by way of an appeal being for the benefit of the party appealing, and it may be taken by the company, notwithstanding the confirmation of the report, or at the instance of the owner of the land, for either an increase or diminution of the compensation to be made. And it is that appeal which the owners have taken in this case. When that has been taken by either party, the law is mandatory that it “ shall be heard by the Supreme Court at any General or Special Term thereof.” And the only condition on which the right to the hearing depends is that it shall be on such notice thereof being given according to the rules and practice of said court.” (Laws 1850, chap. 140, § 18.) The court is vested with no discretion as to the tribunal- to hear the appeal. That has been confided to the party. The proceeding is quite informal, and at the Special Term it has the merit of being much less expensive then when brought before the General Term. And after its disposition by the Special Term it may still be appealed to and reviewed by the General Term, as other decisions of the SiDecial Term may be. Under the system prescribed, the Special Term should not have refused to hear and dispose of the appeal. And for that reason the order should be reversed and the Special Term directed to hear the appeal.

Order affirmed, with ten dollars costs and disbursements of this appeal.


author: Brady, J.: Daniels, J.:

text:
    ABRAHAM ROTHSCHILD, Appellant, v. CLARENCE WHITMAN, WILLIAM CREIGHTON and CHARLES WHITMAN, Respondents, Impleaded with Others.

      Malicious prosecution — action for — counter-claim for damages resulting from, the deceit because of which the prosecution was instituted — demurrer thereto sustained.

    In an action to recover damages for an alleged malicious prosecution and arrest of tlie plaintiff, the complaint alleged that the order of arrest was duly vacated by the court, upon the ground that the same was illegal, and that the proceedings were finally determined' in favor of the plaintiff against the defendants.
    To this complaint the defendants interposed a counter-claim, consisting of a cause of action for deceit upon the part of the plaintiff, in that he induced the defendants to sell goods on credit by false representations, which was alleged in the answer to have constituted one of the causes of action for which the prosecution of the plaintiff was instituted.
    The plaintiff demurred to the counter-claim on the ground that it did not arise out of the same transaction and was not connected with the subject-matter of the action.

      Held, that the demurrer should be sustained.
    That the plaintiff’s cause of action was in tort for a personal injury, and that, defendants’ claim arose upon a contract.
    Appeal by the plaintiff Abraham Rothschild from an interlocutory judgment overruling a demurrer to the defendants’ answer, entered in the office of the clerk of the county of New York on the 19th day of February, 1890, with notice of an intention to bring up for review upon such appeal the order overruling the demurrer, entered in the said action on the 11th day of February, 1890.
    The issue of law arising upon the demurrer of the plaintiff to the counter-claim of the defendant Clarence Whitman was tried at a Special Term of the Supreme Court held in the county of New York, at which it was ordered that the defendant Clarence Whitman have an interlocutory judgment overruling the said demurrer, with costs, and with leave to the plaintiff to withdraw his demurrer and put in a reply within twenty days on payment of costs, otherwise the said defendant to have final judgment.

      Otto Horwitz, for the appellant.

      J. A. Davenport, for the respondents.
   Brady, J.:

This action was brought by the plaintiff against sixteen defendants to recover damages for unlawfully, wrongfully and maliciously commencing an action against him and for causing to be issued against him an order of arrest and thereafter causing him to be taken into custody by the sheriff of the city and county of New York.

The complaint alleges that the order of arrest was duly vacated by this court upon the ground that the same was illegal, unauthorized and without jurisdiction to grant the same, and that the defendants were consequently discharged and the proceedings finally determined in favor of the plaintiff against the defendants by order of the court.

The defendants Whitman and Creighton appeared and served a separate answer, setting up a counter-claim in their favor as against the plaintiff for a sum named. The counter-claim set up a cause of action for deceit against the plaintiff in inducing the defendants to sell goods on credit by false representations, and which the answer alleged constituted one of tbe causes of action for which the prosecution of the plaintiff, which is the subject of this action, was instituted ; and that the vacating of the order of arrest was not on the merits, but because of a misjoinder of causes of action and of parties. To this counter-claim the plaintiff demurred for the reason that it did not arise out of the same transaction and is not connected with the subject-matter of the action, and is not, therefore, of such a character as required by section 501 of the Code.

The learned justice in the court below held that the plaintiff having alleged malice and want of probable cause, and by the demurrer having admitted that the arrest was for a cause of action which entitled the defendants to an order of arrest, was estopped from asserting, as matter of law, that there was no connection between the causes of action set out; and, further, that the question of connection should be left for decision at the trial, where it would present itself either in the form of a question of law or a question of fact. This latter view is based upon the proposition that if the action was conducted as one for false imprisonment only, the counterclaim might not be admissible, while, on the other hand, if it should be conducted as one for malicious prosecution the counter-claim might be received.

The allegations in the complaint of malice and want of probable ■canse are sufficient to present a claim for malicious prosecution. It is well settled that if a complaint is susceptible of two meanings, the one most unfavorable to the pleader must be accepted by him upon his demurrer. (Clark v. Dillon, 97 N. Y., 370.) The defendants had a right, therefore, to proceed upon the proposition that this action is one for malicious prosecution. Is the counter■claim, therefore, one connected with the subject-matter of the action ?

It is admitted by the demurrer that the order of arrest was based upon the charge of deceit and fraudulent representation, and this would seem to establish the legal result that it is a cause of action arising out of the transactions set forth in the complaint as the foundation of the plaintiff’s claim and connected with the subject of that action.

In the case of Carpenter v. The Manhattan Life Insurance Company (93 N. Y., 552) a kindred question was disposed of. It was an action for an alleged wrongful conversion of a quantity of wood. The defendant set up as a counter-claim, in substance, that it held a bond and mortgage as collateral upon certain lands which were insufficient security, and the obligor was insolvent, and that plaintiff, being a second mortgagee in possession of the lands with knowledge of the facts and with intent to reduce and deprive defendant of its security and to defraud it, wrongfully cut the wood in question from the land, thereby wasting the land, etc., to defendant’s damage, and that on the foreclosure of defendants’ mortgage and sale thereunder a large deficiency was left. The court, Earl, J., .said: “ The transaction set forth in the complaint was the conversion of the wood, and hence it cannot be said that the counter-claim arose out of that transaction. But was it not connected with the subject of the action? The word ‘connected’ may have a broad ■signification. The connection may be slight or intimate, remote or near, and where the line shall be drawn it may be difficult sometimes to determine. The counter-claim must have such a relation to, and •connection with, the subject of the action, that it will be just and •equitable that the controversy between the parties, as to the matters •alleged in the complaint and in the counter-claim, should be settled in one action by one litigation.; and that the claim of the one •should be offset against, or applied _ upon, the claim of the other. Here it is sufficiently accurate to say that the subject of the action was the wood wrongfully taken by the defendant, and the counterclaim was for damages sustained by the defendant, in the wrongful impairment of its security by the severance of the same wood from the land, and thus diminishing the value of the land by the value; of the wood. In such case it is certainly just that the defendant, should counter-claim its damage for the severance of the wood against the plaintiffs claim for the conversion thereof. In the forum of conscience the plaintiff was under obligation to restore the; wood to the defendant as a portion of its security for its claim against the mortgagor.”

In the forum of conscience it might, perhaps, be said here, the plaintiff is under the obligation of recognizing the claim of the-defendants arising from his fraudulent conduct. This view is. strengthened by the case of the Glen & Hall Manufacturing Company v. Hall (61 N. Y., 226), in which it was declared that, the policy of the Code of Procedure required a liberal construction of section 150, to the end that controversies between the same parties should be settled in one action.

But, nevertheless, whether this can be done or not depends upon the statute, and the counter-claim set up, if not within the provisions, of section 501 of the Codé of Civil Procedure, cannot be maintained. It is not. The arrests from which the plaintiff suffered were upon process which was unauthorized, and each one of them was a separate and distinct wrong, connected with no other subject than the unlawful arrest. The reasons why such a defense might have been allowed sufficiently appear, if the legislature had permitted it, but they have not, and without that sanction it has no place in a controversy like this. It does not grow out of any transaction, because a transaction eo nomine involves the operation of two minds at least, or out of a contract which requires the concurrence of two minds at least; and it is not connected with the subject-matter of the action, which is not a. transaction or contract, but a wrong done by the attempted enforcement of a contract in an illegal mode. The cause of action here is. for a tort or personal injury. The defendants’ claim arises upon a contract legal and enforceable if the proper methods be adopted. They are, therefore, wholly separate and distinct arid not connected. The only and remote connection between them, it may be said, is that one caused the other, that is, the attempted but illegal enforcement of one gave rise to the other, and they exist, therefore, independently of each other. If the plaintiff had judgment herein and the defendants had judgment on their claim, and an application were made to set them off, there would be a different condition presented for consideration, which might be attended by a different, result.

For these reasons the interlocutory judgment appealed from must be reversed and judgment ordered for plaintiff sustaining demurrer, with leave to defendants to amend within the usual time on payment of the costs of the demurrer and of the appeal.

Yan Brunt, P. J., concurred in result.

Daniels, J.:

I agree that the counter-claim set up in the answer, to which the demurrer has been directed, is not connected with the subject of the action in any legal sense, and has not arisen out of the same transaction. And that the interlocutory judgment should be reversed, and that the plaintiff should have judgment sustaining the demurrer, with leave to the defendants to amend in the usual time on payment of costs of the demurrer and of the appeal.

Interlocutory judgment reversed and judgment ordered for plaintiff sustaining demurrer, with leave to defendants to amend on payment of costs of the demurrer and of the appeal.


author: Daniels, J.:

text:
    FRANK C. HOLLINS and Another, Appellants, v. THE ST. LOUIS AND CHICAGO RAILWAY COMPANY, Respondent.

      Appearance by an attorney — evidence of authority to appear required,.

    Where it is shown that an attorney, appearing for the defendant in an action, may not have been invested with lawful authority to do so, the court will require him to exhibit, or in some other authentic manner disclose, the evidence of his authority.
    Appeal by plaintiffs from an order, entered in the office of the clerk of the county of New York on the 20th day of February, 1890,, •denying plaintiffs’ motion that William 1L Safford, the defendant’s •attorney, exhibit and prove to the plaintiffs and to the court his •authority to appear in the above-entitled action for the defendant therein.

      Fred. W. Ilinrichs, for the appellants.

      W. M. Safford, for the respondent.
   Daniels, J.:

The affidavits read in support of the motion are sufficient to prove that the attorney appearing for the defendant may not have been invested with lawful authority to represent it in the action. And where that may be the fact, the control which the court has over the attorney, whose officer he is, will authorize it to solve the doubt, by •directing him to exhibit, or in some other authentic manner disclose, the evidence of his authority. This is no more than just to the party whose action he may contest, for he should not be subjected to either interference or expense by the intervention in the litigation of an attorney without power to represent the party in whose nominal behalf he assumes to act.

The observance and enforcement of this rule on the part of the ■court will, in a very great degree,, remove all cause for the conspicuous inconsistency which has found its way into the courts from the want of authority on the part of the attorney. As the law has been declared, and now exists, an attorney may appear in the courts of this State for a party without even a semblance of authority for doing so, and subject him to a judgment whose enforcement he will be powerless to resist. (Hamilton v. Wright, 37 N. Y., 502; Brown v. Nichols, 42 id., 26.) While if that is done in another State, and the judgment is afterwards brought here for suit and enforcement, the fact that it has been recovered upon an appearance by an attorney, without authority to represent the party for whom he appears, will be permitted to avoid the judgment for want of jurisdiction over the person- against whom it has been recovered. (Kerr v. Kerr, 41 N. Y., 272.) There is no principle supporting this distinction, but the absence of authority to appear should be attended with the same result in each case. It is little less than .absurd to hold a judgment recovered in this State, on the appearanee of an attorney, to be conclusive, and a judgment recovered in the same manner in another State to be void for want of jurisdiction over the person; and a liberal exercise of the authority requiring the attorney to present to his adversary proof of his power to represent a party will have a beneficial effect in the way of correcting and removing this injustice. It was applied in a salutary manner in Nordlinger v. De Mier (7 N. Y. Supp., 463), and the probability proceeding from the affidavits produced will justify the application of the principle in this case.

The order should be reversed, with ten dollars costs and the disbursements, and an order made requiring the attorney appearing for the defendant to furnish, within ten days after notice of this decision, proof of his authority to appear as attorney for the defendant in this action, or in default thereof that his notice of appearance, and any other paper served by him, be stricken from the record.

Yan Brunt, P. J., and Brady, J., concurred.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CORNELIUS W. ROE, Relator, v. CHARLES F. MACLEAN and Others, as Police Commissioners, etc., Respondents.

      Removal of a policeman from the police force — the evidence of the commission of the offense must he positive, and not inferential.

    Proceedings were brought against a policeman for neglect of duty, in which he was charged with absence from his post during his tour of patrol duty; such absence consisted of sitting in a restaurant. It was admitted by him that he had been sitting in the restaurant, but the evidence failed to establish affirmatively that at such time he was on duty.

      Held,, that a judgment dismissing the relator should be set aside.
    That, in such proceedings, the charge must not only be sustained inferentially but absolutely by proper proof.
    Oertiobari to review tbe proceedings of the police commissioners of the city of New York in the removal and dismissal of Cornelius W. Roe a member of the police force of the police department of the city of New York.

      Tbe return to tlie writ showed that about the 4th day of October, 1889, certain written charges and specifications were duly made and filed with the police commissioners charging Cornelius W. Roe, then being connected with the police force of the police department in the city of New York, as a patrolman, with neglect of duty, in that “said patrolman, Cornelius W. Roe, was absent from his post and was sitting in the restaurant No. 2032 Third avenue, at 10.41 p. m., October 3, 1889, during his tour of patrol duty; ” that he was tried upon such charge, after due notice and an appearance by him, and was adjudged to be guilty of the offense as charged and was dismissed from the police force.

      J. M. Tierney, for the relator.

      JoJm J. Delany, for the respondents.
   Brady, J.:

The relator was charged with absence from his post during his tour of patrol duty, his absence consisting in sitting in a restaurant, but for what period is not stated. When the trial commenced the relator was called and examined, the first question asked, it may be •observed, relating to a subject not embraced in the charge or specification. It was, “ Why were you not here this morning as ordered ? ” .and was followed by several questions relating to that seeming dereliction. The question finally put was this: “The charge against you is sitting in a restaurant at 10.41 p. m., October third,” which was admitted to be true, the relator stating, when asked what he was •doing there, that it was a chilly night and he went in for a cup of ■coffee. There is, however, no evidence that he was at that time on a tour of duty as charged, no further proof of any kind having been .given, and the evidence does not, therefore, sustain the judgment pronounced against him. The rules asserted and re-asserted for our guidance by the court of last resort in the consideration of the evidence against the members of the force who have been tried are so strict, and there is such a marvelous limit upon our control, that it is incumbent upon us to see to it, and with some scrutiny, that the charge made is sustained, not inferentially, but absolutely upon proper proof. For this reason, namely, the absence of any proof that the relator was on a tour of duty at the time he was seen in the .restaurant, the judgment should be vacated and the relator reinstated.

It may be remarked here, in addition, that tlie relator’s wife, as appears by the record, made the following affidavit, to which no response was made:

City and County ok New Yoek, ss. :
Maggie Roe, being duly sworn, deposes and says: I am the wife of Cornelius W. Roe, the petitioner named in the petition hereto, annexed. On or about the 21st day of November, 1889, shortly after my said husband had been dismissed from the police department, I called upon Police Commissioner John McClave at his residence, No. 156 West Seventy-second street, in the city of New York, in relation to my said husband’s dismissal. I called the said commissioner’s attention to the very slight dereliction with which my said husband had been charged, and in the conversation which ensued the said commissioner stated that my said husband, Cornelius W. Roe, had been dismissed on account of his previous record, and not because of the charge on which he was last tried. That when the ease came before the full board Police Commissioner MaeLean brought up the record of previous charges against my said husband, and on that account recommended dismissal, and that the other commissioners voted accordingly. '
MAGGIE ROE.
Sworn to, before me, this 15th ) day of February, 1890. Í
John Mulholland,
Notary Public (75), N. Y. Go.

And, further, that the relator’s record as an officer, returned by the respondent, and which was doubtless used against him, was not given in evidence at the trial, or he given any opportunity to explain it. These things combined suggest elements employed in the consideration of the case which should not have been countenanced and, therefore, not permitted to influence the respondents in forming their judgment.

Ordered as suggested, with costs.

Yan Brunt, P. J., and Daniels, J., concurred.

Judgment vacated and relator reinstated.