author: Lewis, J.:

text:
    The German-American Bank of Tonawanda, N. Y., Respondent, v. Cornelius Daly, Appellant, Impleaded with John Charlton and Another. Same, Respondent, v. Same, Appellant.

      Promissory note —proof of the time of its inception — contradiction of the complaint, when competent.

    The complaint, in an action brought by a bank upon a promissory note, alleged in the usual form that the note was made by the maker, payable to the order of the payees, who indorsed the same and delivered it to the plaintiff in the action before maturity, and such allegations were not denied by the answer. The case was tried upon the theory that the question as to when the note had its inception was open to litigation, and the claim that the plaintiff was concluded by the allegations of its complaint was first taken on an appeal from a judgment rendered in favor of the plaintiff.

      Held, that the plaintiff was not precluded from showing upon the trial of the action that the note which was claimed to be usurious had its inception in fact when delivered to the plaintiff and not in the hands of the payees named therein.
    Appeal by the defendant, Cornelius Daly, in each of the above-entitled actions, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 31st day of January, 1895, upon the verdict of a jury in favor of the plaintiff and against the defendant Cornelius Daly, rendered by direction of the court after a trial at the Erie Circuit.
    The actions were brought to recover upon two certain promissory notes. The complaints were in substantially the same form, and in the first above-entitled action the complaint contained the following, among other allegations:
    “ That heretofore, and on or about the 19th day of March, 1894, at tire city of New York, N. Y., the said defendant Cornelius Daly made his certain promissory note in writing, bearing date on that day, whereby for value received he promised to pay to the order of the said defendants John Charlton and Thomas Charlton, under the' name of J. & T. Charlton, the sum- of $2,700, at the Mutual Bank, New York city, three months after the date thereof, and then and there delivered the said note to the said defendants John Charlton and Thomas Charlton.
    “That the said John Charlton and Thomas Charlton afterward indorsed the said note, under the name of J. & T. Charlton, and the same was thereupon and before it became due and payable, for value received, duly transferred to the plaintiff, which thereupon became and ever since has been the true and lawful owner and holder thereof.”

      Jbkn R. Halsey, for the appellant.
    Patton, Yroman <& Pish, for the respondent.
   Lewis, J.:

The defendant Daly made his promissory note for the sum of $2,700 on the 19th day of March, 1894, payable three months after date to the order of J. & T. Charlton; the payees thereafter, and before the note became due, indorsed and delivered it to the plaintiff in renewal of a note for a like amount held by the plaintiff which was made by the same maker to the order of the Charltons and indorsed by them. The note having matured and not being paid, this action was commenced. The defendant Daly interposed an answer alleging that the note liad its inception in the hands «ff the payees and was void for usury; at the close of the evidence each party requested a direction of a verdict; the said defendant’s request was refused and that of the plaintiff was granted. There was evidence tending to prove the following facts: The defendant Daly purchased of the Charltons in 1891 a quantity of doors, sash and house trimmings, in payment for which he gave them his promissory note for $3,000, payable to their order three months after date; the payees indorsed the note and before it became due sold it for value to the plaintiff, a banking corporation located at Tonawanda, N. Y. When the note fell due it was renewed from time to time by the notes of Daly indorsed by the Charltons; they were delivered to and accepted by the plaintiff, Daly in each instance sending his note for the amount of the one coming due and his check for the amount of the discount to the Charl-tons, and they delivered them to the plaintiff, and the plaintiff handed the maturing note to the Charltons, who mailed it to the defendant. The bank charged and Daly paid interest upon each renewal at the rate of seven per cent per annum; there was evidence tending to show that Daly in some instances sent to pay the discount, his check for an amount equal to eight per cent per annum, and when that occurred the Charltons paid the bank the seven per cent interest and retained to themselves the extra one procuring the renewal; in some instances Daly failed to send sufficient funds to pay the bank the amount of the discount; when that occurred the Charltons made up the amount and Daly thereafter reimbursed them. Plaintiff’s cashier and one of the payees testified that the entire series of notes, including the one in suit, were the property of the bank; this evidence was taken without objection.

The trial court in directing the verdict must have found that the note had its inception in plaintiff’s hands; the defendants’ counsel does not claim that the usury defense can be sustained if this finding was correct; but it is his contention that it is alleged in ■ the complaint and admitted by the answer that the note had its incep-, tion in the hands of the Charltons. The complaint was drawn in ' the usual form of complaints upon promissory notes. It is alleged that the note was made by the maker Daly, payable to the order of J. & T. Charlton; that they indorsed the same and delivered it to the plaintiff before maturity, etc., and th^se allegations were not denied by the answer, and the defendant claims from this that it follows that the note had its inception in the hands of the Charltons.

This claim was not suggésted upon the trial. The case was tried upon the theory that that was one of the questions open to be litigated, and it was litigated. Had the point been raised at the trial the complaint could have been amended if it was thought necessary to conform it to the evidence.

It is too late to raise this question upon appeal. It is not claimed by the appellant that the taking of more than six per cent interest by the plaintiff imperiled the principal, nor that the amount of extra interest received could be set off against the claim, if the note had its inception in the bank. No such defense was pleaded.

Similar questions are presented by appeal No. 2, which is between the same parties, and was submitted with this case.

The judgment in both cases should be affirmed.

Bradley, Wabd and Davy, JJ., concurred.

Judgments affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Fifth Department,
    June Term, 1895.
    David D. Clancey, as Assignee, etc., Respondent, v. Thomas H. Groves, Appellant.
   Judgment affirmed.


author: Ward, J.

text:
    Fanny Sprague, Plaintiff, v. The City of Rochester, Defendant.
   Motion for a new trial denied upon the authority of Smith v. The City of Rochester (46 N. Y St. Repr. 727; S. C., 79 Hun, 174).

Ward, J.

(dissenting) : On the 14th of October, 1892, plaintiff, in passing along a sidewalk in the city of Rochester on.Hamilton place near the corner pf South avenue, stepped into a hole in the sidewalk and was seriously injured. On the third day of the previous September one Williams, a street inspector of the city, gave notice in writing to' one Moore, who was chief inspector of sidewalks and repairs thereof, of the territory embracing the point of injury (and had been so for some years), that the sidewalk at that point was in bad repair. There was evidence tending to show that there was no street superintendent for the city at the time, but his duty was discharged by the chief inspectors of sidewalks and repairs in their several districts to the knowledge and with the approbation of the executive board of the city. When there was no street superintendent his duties were discharged by the inspectors of the several districts, in their districts. The duties of the chief inspector of sidewalks and repairs was to examine the condition of the sidewalks in his district, cause the same to be repaired and report the expense thereof to the executive board. The contention of the defendant is that the notice to Moore was not notice to the city officers having charge of the highways under the city charter, which provided as follows: “The city of Rochester shall not be liable for any injury caused by such sidewalk or any roadway being out of repair or unlawfully obstructed or dangerous from snow or ice unless actual notice of the unsafe or dangerous condition thereof has been given to the city officers having charge of the highways a reasonable time before the happening of such injury.” The charter also provides that: “The said executive board, superintendent of streets, or other officer or body having charge of the highways within said city, shall have the power to repair any sidewalk where the owner of the property shall neglect or ref use to repair the same,” etc. The charter thus recognizes the office of superintendent of streets or other officer having charge of highways, and impliedly creates a power in the executive board to delegate their duties to inferior officers. The executive board is charged with many duties aside from those relating to highways: indeed with the substantial management of the affairs of the city government. They have certainly recognized in Moore an officer who had direct duties in connection with this sidewalk and its repair, and the question should have been submitted to the jury from the evidence presented whether Moore was not such officer and exercising such powers. As the executive board imposed these duties upon Moore, or he exercised them with the consent of the executive board, he represented the board in that regard. The executive board under their general powers had the right to appoint Moore to perform these duties, and notice to him was notice to the board, at least that was a question for the jury. As there was no street superintendent the chief inspectors of sidewalks and repairs in their several districts were acting superintendents therein. The defendant claims that this court in Smith v. The City of Rochester (46 N. Y. St. Repr 72), and same case in 79 Hun, 174) have settled the legal questions involved upon this motion in favor of the defendant. There the plaintiff was injured upon the sidewalk and the offer was to prove that the street inspector had passed along at the point where the sidewalk was defective and observed its condition, and that his knowledge was the knowledge of the defendant and a notice to it of such defect. The court lays stress upon the fact that the executive board could appoint, and at pleasure remove, a superintendent of streets, fix his compensation and prescribe his duties, and the court adds: “Under these provisions of the charter it is clear that this inspector was not a superintendent of streets appointed by the executive board, but he was, as the description of his duties necessarily implies, a subordinate,” etc. The question presented here, therefore, was not before the court in that case; in this case there was no superintendent in existence, and his duties were performed by acting street superintendents, of which Mr. Moore who received this notice was one. A second trial was had in the Smith case, and there the plaintiff undertook to prove actual notice to the city by showing that a member of the executive board had passed over the street at the point where the plaintiff was injured, before her injury, and should have observed its condition. This official swore, however, that he had no actual knowledge of the defect complained of, and the court (Lewis, J., 79 Hun, 175) says: “It was not sufficient for the plaintiff to show that Mr. Arbruster (the city officer) was negligent in not discovering the defect, but under the provisions of the charter, in order to have been entitled to go to the jury with the case, the evidence must have tended to show that Arbruster had. actual knowledge of the defect. This we think the evidence failed to establish, and that being a condition to the plaintiff’slight to recover she was properly nonsuited.” In the case at bar there was actual notice to Moore more than a month before the injury. As before said, it was for the jury to say whether the city had reasonable notice as to the condition of this sidewalk. It was for the jury to say whether under all the evidence Moore was not a city officer having charge of the sidewalks and the repairs in the place of a city superintendent tnat the executive board had not appointed, and who was discharging the duties of -such superintendent. It was error in the trial court to take this caso from the jury, and the motion for a new trial should bo granted, with costs to abide event.


text:
    Grace G. Ayers, Respondent, v. Rochester Railway Company, Appellant.
   Judgment and order affirmed.

Bradley, J., not voting.


text:
    Albert Hollenbeck, Plaintiff, v. William H. Jones, and Others Defendants.
   Motion for new trial denied, and judgment directed for the defendants on the verdict.


text:
    Charles W. Henning and Another, Appellants, v. Seymore Bennett and Another, Respondents.
   Judgment and order affirmed,


text:
    Rochester Printing Company, Appellant, v. Patrick Fahy and Others, Respondents.
   Judgment affirmed, with costs.


text:
    George Cooper, Plaintiff, v. William H. Gorsline and Another, Defendants.
   Motion for new trial denied, and judgment directed for the defendants on the nonsuit.


text:
    Anna B. Neal, Respondent, v. The City of Rochester, Appellant.
   Judgment affirmed, with costs, on the authority of Smith v. The City of Rochester (92 N. Y. 463; 38 Hun, 612; 104 N. Y. 674).


text:
    Maria B. Mitchell, as Sole Surviving Executrix, etc., Appellant, v. Frank H. Ball and Another, as Executors, etc., Respondents.
   Judgment affirmed, with costs.


text:
    In the Matter of the Application of Cornelia Varney, as Legatee, etc., under the Will of George A. Varney, Deceased, for Payment of Annuity, etc.
   Judgment affirmed, with costs of this appeal against the appellant personally.


text:
    Alice L. Oishei, Respondent, v. Achille J. Oishei, Appellant.
   Order affirmed, without costs.—

Dwight, P. J., not voting.


text:
    George W. Ough, Respondent, v. William J. Ford, Appellant, Impleaded, etc.
   Order affirmed, without costs.


text:
    Johanna Steinhauer, as Administratrix, etc., Respondent, v. Anna B. Acker, Appellant.
   Judgment affirmed, with costs.


text:
    Charles W. Crossman and Another, Respondents, v. David B. Lochner, Appellant.
   Judgment affirmed, with costs.


text:
    Harry P. Simpson, Respondent, v. James L. Hatch and Another, Appellants, Impleaded, etc.
   Judgment affirmed.


text:
    Eugene Storms, an Infant, by Guardian, Appellant, v. William Skillett, Respondent.
   Judgment and order affirmed.


text:
    Hampton Dodge, Respondent, v. Henry Weill, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Probate of the Alleged Will of James R. Whitney, Deceased.
   Re-argument ordered.


text:
    Henry S. Anderson, Respondent, v. Edward T. Dickinson, Appellant.
   Judgment reversed, new trial granted, costs to abide the event.— Lewis, J.: This is the second time this case has been before this court upon appeal from a judgment entered upon the report of a referee. We held, in deciding the first appeal, that the referee had erred in his construction of the contract upon which the plaintiff’s cause of action is based when the contract was read in connection with the evidence on the trial and we reversed the judgment and granted a new trial (72 Hun, 556). The case was retried and before the same referee and it appears bv his second report that he has adhered to his former conclusions. His findings on the second trial are more elaborate than were his first findings, but they were based upon substantially the same evidence. Both parties were present and testified upon the first trial. The defendant is a resident of France and was not present at the second trial, but his testimony given on the first trial was read by stipulation. The plaintiff was called and testified on the last trial, and in relating a conversation he had with the defendant and which he had assumed to fully state upon the former trial he added new matter not before stated. When asked why he had omitted it on the first trial he replied that he was not then interrogated in reference to it; he did not claim that it did not occur to his mind. It is upon this new matter that the plaintiff mainly relies to distinguish the case as now presented from the former appeal. It is apparent from the record that the plaintiff is an intelligent man of considerable business experience and that he fully comprehended the questions involved in the litigation and the effect of the evidence, and it is altogether improbable that the new matter would have been left out by him on the first trial when he was stating the conversation if it, m fact, was a part of it. We are satisfied, after an examination of the evidence on this appeal and a re-examination of the evidence m the former record, that the facts are substantially the same; if there be any material change it is in favor of the defendant; a number of letters written by the defendant, not read in evidence on the former trial were in evidence on the second trial; it is quite difficult, if not impossible, to reconcile their contents with the plaintiff’s alleged cause of action. We find no reason for changing our conclusions upon the former appeal. The judgment should be reversed and a new trial granted costs to abide the event.

Werner, J., concurred; dissented; Bradley, J., not voting.


text:
    Mary S. Brooks, Respondent, v. Rochester Railway Company, Appellant.
   Judgment and order affirmed.


author: Ward, J.:

text:
    William C. Bryant, as Executor, etc., Appellant, v. Sarah A. Gay and Others, Respondents.
    Judgment affirmed, without costs.—
   Ward, J.:

Joseph N. Tift died on the 22d day of April, 1873. Previous to and at the time of his death he was one of a firm carrying on business in Buffalo manufacturing steam engines and boilers under the firm name of George W. Tift Sons & Co. The other members of the firm were George W. Tift, John V. Tift, Clarence L. Whiting, C. F. Gay, Mary A. Plimpton, and one share held by G. W. Tift in trust for Lewis Whiting Gay. There were fourteen shares in all in the concern; Joseph N. Tift was the owner of two and one-half shares. The members of the firm were closely related and no difficulty seems to have occurred prior to the death of Joseph. Joseph left a last will and testament which was duly admitted to probate and John V. Tift and the plaintiff were named as executors. On the 1st day of May, 1873, the survivors of this firm, together with Sarah A. Gay, organized a new one under the same name which took possession of the assets of the old firm and carried on the business. While the old firm was in existence, and in July, 1868, Joseph, John Y. and George W. Tift, Whiting and C. F. G&y with, four other parties organized in Buffalo a joint stock association under the laws of the State of New York named the Plimpton Fire Proof Elevating Company, the capital stock of which was $300,000. Joseph subscribed for $2,000 of the stock and was a director in the association up to the time of his death. This association, erected and operated a fire proof elevator in Buffalo which was completed and ready for business in 1869. The old firm of G. W. Tift Sons & Co. furnished a large part of the material and means for the construction of this elevator. On October 30, 3869, the association mortgaged the property to secure the payment of $200,000. Joseph joined in the mortgage. The association had some real estate in Buffalo. The value of this elevator at the time of the death of Joseph, as found by the referee, was $255,000. The referee also found that at that time the association was indebted to the firm on open account in the sum of $36,122.35, and on promissory notes in the sum of $200,000. The firm held stock in the association, the par value of which was $170,000, which account, notes and stock were a part of the assets of the firm at the time of the death of Joseph. In July, 1873, George W. and John V. Tift i^id others organized a corporation under the laws of the State of New York, under the title of the Tift Fire Proof Elevating Company, and the Plimpton Fire Proof Elevating Company conveyed its real estate including its elevator to this corporation. The consideration for such conveyance recited in the deed thereof was §190,000. No money was in fact paid, hut for this amount the Tift Fire Proof Elevating Company issued to the stockholders of the Plimpton Company 1,900 shares of its stock of the par.value of §100 per share, and on the same day the Plimpton Company executed and delivered to George W. anti John V. Tift and Charles L. Whiting, Charles C. Gay and Mary A. Plimpton a mortgage on said elevator property conditioned for the payment of $>237,-542.10, of which §200.000 was to secure the payment of the notes made by the Plimp-ton Company and held by the survivors of the old film of G. W. Tift Sons & Co., and the balance to secure an account owing by the Plimpton Company to the firm. These facts the referee finds and that the transactions were in entire good faith and for the best interests of all concerned. This action was commenced in 1880, and was brought against the survivors of the old firm and Sarah A. Gay, and the personal representatives of such of those survivors as liad died, for an accounting of and concerning the property and effects of the old firm and the disposition thereof by the survivors and the profits made by them out of the assets of the firm, and demanded judgment in favor of the plaintiff for a large amount. The defendants answered denying liability, and the issues were referred to a referee to hear, try and determine. The referee entered upon the trial and discovering that an accounting by the defendants was essential to the proper determination of the ease, and upon the application of the plaintiff asking that an account be rendered of the affairs of the firm since the death of Joseph N. Tift, and the assets of the firm (the defendants being heard in opposition), ordered that the defendants render an account in the action which should embrace a full and itemized statement of the property, liabilities and uncompleted contracts which were of the old firm upon the death of Joseph, and a full statement of the transactions of the new firm to the date of the accounting, and of the present assets of the new firm as it then existed, which order was made on the 21st of March, 1885. The defendants in pursuance of this order made a very full and elaborate accounting under oath as required. This accounting was-submitted to the referee and parties, and the plaintiff took certain exceptions thereto one of which was to an item of §112,000 specified in the account and required a detailed statement thereof, which was duly rendered and made a part of the original accounting. Afterwards and on the 3d day of August, 1887, the parties by their attorneys stipulated as to the issues of fact to be tried by the referee, and the stipulation recited as follows: “To expedite the trial of this action we stipulate and agree that the only issues of fact to be hereafter tried and decided are as hereinafter stated, and all other issues of fact, charges against and objections to the account rendered by the defendants impleaded, except questions of law arising upon said account, are hereby waived and abandoned, except as hereinafter stated.” Then follow the issues, seven in number, covering the questions mainly which will be hereafter discussed. The parties proceeded to give evidence, the plaintiff insisting that the defendants be required to proceed with their proof upon the trial on the ground that the burden rested upon the defendants. This motion was denied by the referee and the plaintiff excepted. The -proof that was given very largely related to the Plimpton elevator ana its value. The account as rendered seems to have been treated as evidence by the court and counsel upon the trial. In the account as rendered, which covered 316 pages of printed matter, there was an inventory of the assets of the old firm as of May 1, 1873, eight days after the death of Joseph. That inventory contains a table, first' of nominal values and . then of actual values, and also of liabilities. The value of nominal assets is stated at §605,-658.74. The actual value of the assets and property, §135,862.48. Liabilities, §386,-878.97. Nominal surplus, §218,779.77. Actual deficiency, §251,016.49. In this table the nominal value of the Plimpton accounts, notes and stock of the old firm are put at §406,122.35. The actual value of the property embraced in this-item is not given, but the accounts, notes and stock are treated as valueless. The referee found as a fact that at the time of the death of Joseph the value of the assets of the old firm was §135,682.47, and that the liabilities were §386,678 97, and that the firm was insolvent, and that the excess of liabilities over assets of the old firm being §251,016.49 had been paid by the members of the new firm out of their private and individual means and not out of the assets or property of the firm; thattbe actual value of the assets and property of the old firm was as specified in the inventory and not the nominal value as therein stated; that .the Plimpton Elevator Company at the time of the death of Joseph was insolvent, having a total indebtedness of §159,867.43, in addition to the indebtedness owing to tbe old firm on accounts and notes above given of §236,122.65. The refei’ee finds that the interest of the firm in the Plimpton Fire Proof Company was of little or no value. The referee found that in March, 1879, the Tift Fire Proof Elevating Company sold its real estate, including its fire proof elevator (the Plimpton elevator), for §255,000, and that in making such sale the new firm acted in entire good faith and that that sum was the best price that could be obtained for tbe property. The referee also found the several issues set forth in the stipulation in favor of the defendants; that they had made diligent efforts and in good faith to realize as much as possible from the claims held by the old firm against the Plimpton Elevator Company, and to realize as much as they could, and did realize in fact as much as they possibly could out of and from all the assets and properties of the’said old firm; 'that they had fully, fairly and completely accounted in this action for all the assets and properties of the said old firm, and in effect that the survivors and the defendants in all their transactions with the partnership property had acted in good faith and in the best interests of all concerned. The effect of the •accounting and the referee’s conclusions were that nothing remained to the estate of Joseph, either out of the original assets of the old firm, or out of any accretions or profits that had resulted from the use of the partnership property by the survivors, and, therefore, the complaint should be dismissed, with costs against the estate of Joseph. The plaintiff attacks these conclusions and asks for a reversal of the judgment because the referee was not warranted in his conclusions of fact from the evidence; that as the referee had found, there was no accounting by the defendants until made in the present action; that the business had been continued by the survivors a great length of time, and new enterprises had been engaged in with the property of the old firm; that as the survivors being in a sense trustees for the estate of Joseph had wrongfully commingled the funds of the old firm with other enterprises in which they were interested, either as stockholders or personally, they should be held to a rigid rule of accountability, and from all the evidence it was apparent that their accounting was not reliable, and that the claims set forth in the complaint were established. The plaintiff contends that the nominal value of the property in the inventory should be charged upon the defendants as they had not by proper explanatory evidence shown that the actual value of the property as stated by them in the inventory was the true value,. and that the referee Should have found with him upon this question as a matter of law. We cannot sustain this contention, as the referee had the right to consider the whole evidence as to the value of the inventoried property; he had the right to take into account all the proof as to the value of the interests of the old firm in the Plimpton elevator property which constituted the chief assets of that firm. Both sides gave proof as to the value of that elevator property; the tendency of the plaintiff’s proof was that it was worth the nominal value stated in the inventory, while the defendants’ proof, showing the use of the property and its value, brought the property down to a much lower valuation; besides, the plaintiff relies upon the account of the defendants to show the nominal value of this property and of the other properties of the old firm stated in the inventory. The defendants are also entitled to the benefit of their statement in the inventory as to its actual value in connection with the statement as to the nominal value, and from a review of the evidence we do not differ from the referee’s conclusions as to the value of the property. The plaintiff seeks to charge the defendants with the amount of the consideration mentioned in the deed from the Plimpton Association to the Tift Mre Proof Elevator Company of $190,000, but in view of the fact that the company (the Plimpton Company) received nothing but shares of stock in the Tift Company at par value, and that this was not an individual transaction, but between an association and a corporation, and the property received by the corporation for the snares so issued to the Plimp-ton Association was of little if any value; this contention also falls. The plaintiff also contends that the point was well taken before the referee, that notwithstanding the accounting that had been insisted upon by him and obtained, the burden upon the trial of the stipulated issues still remained with the defendants, and that it was for them to show by further and more conclusive proof the good faith and propriety of their actions, and that nothing remained to the estate of Joseph in their hands. The plaintiff had waived by his stipulation all objections to the accounts of the defendants, except such questions of law as might arise. He had brought the defendants into court charged in the complaint with dereliction of duty as survivors with regard to the property of the old firm, and that there remained in the hands of the defendants property of the estate for which judgment should be given to tho plaintiff. He had forced an accounting by the defendants, and he cannot now object that the order made by the referee for such accounting was irregular, or that it had not all the force of an order made by the court. While the burden was thrown upon the defendants to make the account m a proper sense, still, when it was made, the burden shifted and fell upon the plaintiff to attack that account, and remained with him t<? the end to establish the cause of action set forth in his complaint. The referee was, therefore, right in his ruling upon this subject. The appellant concedes that the debts or the old company were the amount stated in the inventory, of nearly $400,000. There seems to be abundant evidence to sustain the conclusions of the referee, that the value of the assets of the old firm was about $131,000. This large difference against the the old firm of over $250,000, there seems to be but little question was made up out of the private means of the survivors. This bare statement would seem to put at rest any claim that Joseph N. Tift at the time of his death owned a farthing’s interest in' the property of the old firm. Charging him with this large deficit, it is not apparent from the evidence in this case how it was overcome by the subsequent management of the property of the old firm by the new, so as to leave anything for the plaintiff. It is true that, while the old firm might in fact have been insolvent at the time of the death of Joseph, if there were subsisting contracts or property out of which might spring in the future, if judiciously managed, profits that would wipe out the liabilities or the old concern and leave a balance, the plaintiff might share in that, but there is nothing in this case to justify such hopeful conclusions. Certain exceptions were taken by the plaintiff to the admission or rejection ol' evidence upon the trial. 'We do not deem it necessary to consider them here, as, even if they embraced the errors alleged by the plaintiff, they could, not possibly have affected the result or averted the inevitable conclusions that the referee reached, and which we have reached from the papers before us, that, at the time of the death of Joseph, the old firm was hopelessly insolvent and there was nothing for the survivors of the firm to build upon, out of which to work any benefit to the laintiff. The judgment should, therefore, e affirmed, but as it was proper for the plaintiff to bring this action and obtain the accounting, no costs should be imposed upon the plaintiff as administrator upon this appeal.

Lewis, Bradley and Werner, JJ., concurred.


text:
    Lena M. Allen, Respondent, v. Nelson Miller and Others, Appellants.
   Judgment affirmed, with costs.


text:
    Ann E. Maytham, Respondent, v. The Travelers’ Insurance Company of Hartford, Conn., Appellant.
   Judgment and order affirmed.


text:
    Lydia Cole, Appellant, v. Kate C. Brown and Others, Respondents.
   Judgment affirmed, with costs.

VV erner, J., not sitting.


text:
    Mary G. Gilbert, Appellant, v. Levi Noble and Others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Edward W. Hankins, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment and order affirmed.

Ward,J., not sitting.


text:
    Levy S. Davis, Respondent, v. The John T. Noye Manufacturing Company, Appellant.
   Judgment affirmed.


text:
    Joseph Lefrois, Respondent, v. The County of Monroe, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Charles Scholl, Respondent, v. The County of Monroe, Appellant.
   Order affirmed, without costs.


text:
    Daniel J. Scholl, Respondent, v. The County of Monroe, Appellant.
   Order affirmed, without costs.


text:
    The People of the State of New York ex rel. Harry T. Gale, Appellant, v. Edgar B. Jewett and Others, Constituting the Board of Police of the City of Buffalo, Respondents.
   Order affirmed, without costs.


text:
    Nancy McConnell, Respondent, v. The National Life Association of Hartford, Conn., Appellant.
   Judgment and order affirmed.


text:
    Mary E. Hoefler v. Mary R. Hoefler.
   Motions.

Motion denied, without costs.


text:
    Henry M. Davis, Appellant, v. Benjamin Aikin, Respondent.
   Motion to amend memorandum decision so as to read “ judgment of the County Court reversed and that of the justice affirmed,” granted.


text:
    Phoeby J. Colby v. Edward J. Colby, by Guardian.
   Motion granted.


text:
    In the Matter of the Application of the Auburn City Railway Company for the Appointment of Commissioners to Determine whether the Street Railway ought to be Constructed in West Genesee Street in the City of Auburn.
   • Report of the commissioners confirmed.


author: Pratt, J.:

text:
    Second Department,
    June Term, 1895.
    James E. Boyd and Others, Respondents, v. Joseph H. Miller and Others, Appellants.
    Order affirmed, with ten dollars costs and disbursem ents.—
   Pratt, J.:

We think it sufficiently appears that the moving parties have acquired a lien on defendants’ property subsequent to the attachment. The affidavit of Matthews states that the sheriff has taken possession of the property of defendants under the attachment and is now in possession thereof, and that the execution of Matthews was thereafter duly issued and levied “ on the attached property.” That sufficiently describes the property and shows it to be now held subject to the two proceedings. We are thus brought to the question whether the attachment was granted upon sufficient grounds The attachment is stated to issue on the ground that defendants have assigned or disposed of, or are about to assign or dispose of, their property with intent to defraud their creditors. We think that the affidavits contain evidence from which the Special Term judge might fairly draw the inferences necessary to sustain the attachment. The .creditor recites his conversations with defendants; their statements and the contradictions of their sister, to whom they claimed to have transferred their assets, are given at length, and we cannot say that the conclusion was unwarranted that defendants intended to transfer their property in fraud of their creditors. Just what had. been done, and just what was intended to be done, it might not be easy to determine as the statements made were conflicting, but we think enough appeared to sustain the attachment. Order appealed from affirmed, with costs.

Dykman, J., concurred; Brown, P. J., not sitting.


text:
    Nason Ice Machine Company, Appellant, v. William L. Hermance, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.

Dykman, J., not sitting.


text:
    In the Matter of Joseph F. Hanley.
    Order affirmed, with coste.—
   Pratt, J.:

The surrogate directs a judicial settlement of the account of AnnaT. Murphy as general guardian of Joseph E. Hanley. It is objected to on the ground that in a pending partition suit Joseph F Hanley has pleaded that Anna T. Murphy has collected rents belonging to Hanley for which an account is asked. The pleadings before the surrogate show that the rente are not matters for which an account is claimed. It follows that full relief cannot be given in the partition suit, and the accounting before the surrogate is necessary. Order appealed from, affirmed, with costs.

Brown, P. J., and Dykman. J., concurred.


author: Brown, P. J.:

text:
    Henry W. Cromwell, as Administrator, etc., Respondent, v. Henry Hall, Appellant.
    Judgment reversed, with costs.—
   Brown, P. J.:

The notice of appeal, not containing any demand for a new trial, raised questions of law only, and it was the respondent’s duty, if there was any other evidence than that contained in the appeal book, to have caused such evidence to be inserted in the justice’s return. (Halpin v. Phenix Insurance Co., 116 N. Y. 165.) The justice’s return, however, states that it contains all the testimony given on the trial, and the question presented is whether there is any evidence to support the verdict. The testimony in the justice’s return does not show any indebtedness of tbe defendant to the plaintiff, and it is absolutely impossible on any view of the case to ascertain how the jury arrived at their verdict. The judgment is wholly unsupported by the testimony, and as we cannot, upon the record before us, indulge in any presumption in the respondent’s favor, it should be reversed.

Dykman and Pratt, JJ., concurred.


text:
    Granite State Provident Association, Appellant, v. Michael E. McHugh, Respondent.
    Order affirmed, with ten dollars costs and disbursements.—
   Brown, P. J.:

This is an appeal from an order resettling a decree of foreclosure. McHugh had a mechanics’ lien upon the mortgaged premises, which attached after $10,500 had been, advanced on plaintiff’s mortgage. After the lien was filed, other advances were made on the mortgage up to $15,000. The court decided that McHugh’s lien and his costs must be paid after the plaintiff was paid $10,500 and his costs. By inadvertence he gave an allowance of $200 to the plaintiff, to be paid before McHugh’s lien and costs. The decree as resettled corrects this and makes the allowance payable after McHugh is paid. This is right. It was discretionary at all events with the trial court, and the order should be affirmed, with ten dollars costs and disbursements.

Dykman and Pratt, JJ., concurred


text:
    Catherine Schoonmaker v. Leonard Blass
    (No. 2).
   Order affirmed, with ten dollars costs and disbursements. No opinion.

All concur.


text:
    In the Matter of the Application of Augustine R. McDonald for leave to intervene.
   Order affirmed, with ten dollars costs and disbursements. No opinion.

All concur.


text:
    James H. Perkins v. James Gordon Bennett.
   Order affirmed, with ten dollars costs and disbursements. No opinion.

All concur.


text:
    Timothy Gannon v. The County of Queens, etc.
   Appeal of Timothy Gannon from judgment entered October twenty-fifth is dismissed, with ten dollars costs.


text:
    Joseph Newman, Appellant, v. Ephraim B. Levy and Others, Respondents.
   Motion denied.


text:
    Charles E. Maxfield, Respondent, v. Oliver L. Carpenter, Appellant.
   Motion for reargument denied, ■with costs.


text:
    Samuel W. Hastings, Late Constable, etc., Appellant, v. Jacob Nagel and Others, Respondents.
   Motion for reargument dented, with costs.


text:
    Joseph Newman v. Ephraim B. Levy and Others.
   Motion for leave to appeal to the Court of Appeals denied, without costs.


text:
    Matter of the Petition of the Brooklyn Elevated Railroad Company Relative to Acquiring Title to Real Estate or a Right of Way on Myrtle Avenue in the City of Brooklyn, Parcel No. 198.
   Order denying motion to dismiss appeal of plaintiffs from final order confirming report.

       So in list of decisions. — [Rep.


text:
    Theodore V. Smalley, Plaintiff, v. The Fulton Bank, Defendant.
   Order reversing judgment and ordering a new trial granted, with costs to abide event.


text:
    The People of the State of New York ex rel. Cunningham and Another, Respondents, v. Thomas A. Wilson and Others, Appellants, Composing the Board of Assessors of the City of Brooklyn.
   Order dismissing appeal from judgment granted and signed.


text:
    Eliza Beck and Others v. The Brooklyn Elevated Railroad Company and Others.
   Order of General »Term modifying judgment by striking out words “ with costs and disbursements,” granted.


text:
    Village of Flushing, Respondent, v. Patrick Carraher, Appellant.
   Motion for leave to go to the Court, pf Appeals denied.


text:
    Emma Bryan v. Louis J. Grant.
   The proof and order are in accordance with the decree of the court and are settled in accordance therewith.


text:
    Emma Bryan v. Louis J. Grant.
   Proposed order denying the proposed order is in accordance with the decree of the court and is settled in accordance therewith.


text:
    Phebe A. Henderson v. Caroline I. Hadden and Others.
   Order affirmed, with ten dollars costs and disbursements. No opinion.

All concur.


text:
    In the Matter of the Probate of the Last Will and Testament of Joseph Cohen, Deceased.
   —Motion is denied, but appeal will be dismissed at the next term if appellant is not then ready to argue.


text:
    Henry Bereau v. Daniel O’Connell.
   Motion, to vacate order of February 11, 1895, denied.


text:
    Samuel J. Campbell v. Albert Friedlander and Another.
   — Appeal taken from order of Justice Smith February 27,1895, dismissed, with ten dollars costs to respondents.


text:
    John Enscoe v. New York and Rockaway Beach Railway Company.
   — Appeal from judgment entered February 21, 1894, dismissed, with costs.


text:
    Bernard Schaeffer v. Henry Erlenmayer and Others.
   This motion is for Poughkeepsie. We cannot, therefore, grant the motion.


text:
    Mary Ann Durland v. Jesse Durland, as Executor, etc.
   — Ordered that the order of this General Term, dated December 103 1894, be amended by inserting therein after the word “ reversed ” the words “ on both questions of law and questions of fact.”


text:
    Matilda R. Watrous, Appellant, v. Ellen E. Low and Others, Respondents.
   — Motion to dismiss appeal denied upon condition that the appellant duly serve her case on appeal and argue said appeal at the term of this court for the second Monday of September, 1895, otherwise said motion is granted.


text:
    In the Matter of the Judicial Settlement of the Accounts of Josephine T. Dusenbury, etc., Administratrix.
   — Appeal dismissed, with ten dollars costs, and case stricken from calendar. Order signed.


text:
    Charles N. Hildreth v. Thomas W. Willets and Others.
   — Appeal taken from order dismissed, and order affirmed, with ten dollars-costs and disbursements.


text:
    People ex rel. Robert Lee and Others v. The Village of College Point and Others.
   Motion to resettle order denied.


text:
    John Sutherland v. The City of Brooklyn, Impleaded with Others.
   Order reversing judgment and granting; new trial, with costs to-the appellant to abide the event. Signed.


text:
    Matter of the Accounting of the Brooklyn Trust Company, as Executor of John G. Kimm.
   — Order affirming order made by surrogate, without costs.*


author: Martin. J.:

text:
    Fourth Department,
    July Term, 1895.
    Ella I. Baskin, Appellant, v. Mary E. Ingalls and Others, Respondents.
    Order affirmed, with ten dollars costs and disbursements.—
   Martin. J.:

This action was for the partition of certain real property situated in the county of Schuyler, of which ’Ebenezer In-talls died seized. The plaintiff was his aughter, the defendant Mary E. Ingalls his wife, and Charles W. Ingalls his son. He devised to each one-third of the real estate of which he died seized. After the testator’s death the plaintiff commenced this action. William M. Pellett and Matilda Fiero were made defendants, and answered, denying that the decedent was seized in fee simple and possessed of the land known as the Fiero house and lot. They also alleged that the lot in question was owned by the defendant Pellett in 1883, subject to a written contract to sell the same to the defendant Fiero; that subsequently lie sold and assigned his interest in such contract to the testator, and conveyed to him the title to such land subject to such contract, as a security for money; that such assignment was still in force; that the defendant Fiero had occupied the lands under such contract since it was made, and made payments thereon to the decedent and his executors, and that the only interest the decedent or his executors-had in said land was a chattel interest as-security for the payment of $700 and interest from the 16th of June, 1883. It appeared from the papers read upon this motion that, after issue was joined and while the action was pending, the defendants, Mary E. Ingalls and Charles W. Ingalls, personally, and as executor and executrix of the last will and testament of Ebenezer Ingalls, deceased, Mary E. Ingalls, as trustee* thereunder, and the plaintiff in this action, made and entered into an agreement whereby the matters in dispute between them were to be settled, and the lands described in the complaint divided, with the exception of the Fiero house and lot, and the question whether as between the parties that was real or personal property was- to be submitted to Hon. O. P. Hurd for determination. If held to be realty, then the plaintiff was to receive one-third thereof. After this agreement was made and executed by the parties, the attorney for the answering defendants* among whom were Mary E. Ingalls. Charles W. Ingalls, William M. Pellett and Matilda Fiero, stipulated to withdraw all the answers interposed by them, consented that the plaintiff might proceed in the action as upon default, and waived notice of application for judgment. It also appeared by the affidavits read in opposition to this motion that the .Fiero house and lot was by express agreement to be deemed withdrawn from the action and further proceedings in the case, and it was understood that the description thereof should be regarded as stricken out of the complaint, and that no decree of partition should be taken as to it; that it was the intention and understanding of the parties that the defendant Fiero was to be regarded as the owner of that parcel under her contract of purchase; that no further proceedings in the action were to be taken against her on account thereof, and that the question whether the same was real or personal property as between the plaintiff and the defendants Mary E. and Charles W. Ingalls in the distribution of the estate was to be determined in the manner specified. This understanding was carried out by the plaintiff by omitting from the decree herein the description of the Fiero house and lot. It is quite manifest from the papers contained in the appeal book that, during the progress of this action, there was an understanding and agreement between the tenants in common of the property mentioned in the complaint for the settlement of the action, and the division of the property in the manner set forth in the written contract between them. It is equally obvious that there was an understanding between all the parties 'that the Fiero house and lot was not thereafter to be regarded as a part of the property which was to be partitioned, but that Mrs. Fiero was to have it upon the payment of the portion of the purchase price remaining unpaid, and the question to be determined by Judge Hurd was whether the amount to be thus paid was to be treated as real or personal property in the division between the plaintiff and the defendants Mary E. and Charles W. Ingalls. Under these circumstances, it would, we think, have been both inequitable and unjust to grant the plaintiff's motion to Insert a description of the Fiero property in the judgment herein nunc pro tunc, thereby making it a part of the property partitioned when it had been ■withdrawn from the action in consideration cf the withdrawal of their answers by the defendants Pellett and Fiero. Nor do we think that any new interlocutory-judgment should be granted as to such premises, directing a sale or division thereof, as such an order would be in direct conflict with the understanding between the parties, as the same may have been found by the Special Term. A careful examination of the papers before us upon this appeal has led us to che conclusion that the court properly denied the plaintiff’s motion, and that the order appealed from should be affirmed. Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., and Merwin, J., concuiTed.


author: Martin, J.:

text:
    Norris Winslow, as Trustee, etc., v. The Carthage, Watertown and Sacketts Harbor Railroad Company, Appellant; In the Matter of the Application of Addison L. Upham, County Treasurer, etc., Respondent.
    Order reversed, without costs to either party.—
   Martin, J.:

Upon a former appeal from this order by the plaintiff Norris Winslow, as trustee, this court modified it by striking out the second paragraph, beginning with the words, “It is further ordered,” and ending with the words, “ shall be discharged from all further liability in relation to the said fund,” thus leaving the order as modified so that it directed the present appellant, the railroad company, to pay to the respondent $500 for his fees, and two dollars and sixty-seven cents for his disbursements, with that portion of the order which required the respondent upon this appeal to deliver to the appellant herein its bonds to the amount of $150,000, which was in his hands, upon payment of such fees, stricken out, at least so far as the plaintiff, the then appellant, was concerned. The whole order was not reversed upon the former appeal for the sole reason that the Carthage, Watertown and Sacketts Harbor Railroad Company had not appealed, and it was, therefore, assumed that it was satisfied with it-. Upon this appeal the question is presented whether the whole order should not be reversed. Although it is difficult to discover any principle upon which the Special Term could properly require the appellant to pay the respondent $50J for his fees, yet, without discussing that question, and independent of it, we are of the opinion that the whole order should be reversed so as to avoid any complications that may arise by reason of the reversal of a portion of the order and leaving the rest undisturbed; as, under such circumstances, it may perhaps be claimed with some show of reason that the respondent is entitled to recover his fees and disbursements without complying with that portion of the order whicn required him upon the payment of his fees to deliver the bonds in his hands to the railroad company. It is manifest from the opinion of this court delivered upon the former appeal that if the present appellant had then appealed from the whole order it would have been reversed. As it is now appealed from, in view of our former decision, we think it should be reversed, thus leaving the whole matter open to future action by the court below, thereby avoiding the complications suggested. But, as the appellant did not join in the former appeal, we think no costs should be allowed. Order reversed, without costs to either party.

Hardin, P. J., concurred; Merwin, J., concurred in result.


text:
    Lydia Pritchard, Personally, and as Executrix, etc., of William Dickerson, Deceased, Respondent, v. Seldon Palmer and Others, Appellants.
   Judgment affirmed, with costs.


text:
    Wilson B. Taylor, Respondent, v. Jackson T. Roe, Appellant.
    Judfment affirmed, with costs.—
   Martin, J.:

A careful examination of the evidence contained in the appeal book has led us to the conclusion that it was sufficient to justify the decision of the learned trial judge that the premises described had become and were a public highway. While there was something of a conflict.in the testimony as to the facts bearing upon that question, it cannot be said that the findings of the court were against the weight of the evidence. Upon the facts as found the court properly held that the locus in quo was a public highway, and it was, therefore, justified in directing the judgment herein. We find no other exception that would justify us in disturbing the judgment, or that requires discussion. It follows, therefore, that the judgment should be affirmed. Judgment affirmed, with costs.

Hardin, P. J., and. Merwin, J., concurred.


author: Per Curiam:

text:
    Alexander Myers, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Judgment and order affirmed, with costs.—
   Per Curiam:

When this case was before us on a former appeal (82 Hun, 36) the judgment upon a verdict in favor of plaintiff was; reversed on the ground that the plaintiff was guilty of contributory negligence and a non-suit should have been granted on that ground. Upon the retrial now under review a nonsuit was granted, it being said by the trial justice that in his opinion the facts were not in any material respect changed from what they were upon the former trial. We are of the opinion that the nonsuit was properly granted. The changes, if any, in the evidence related to the proof on the question of whether the conductor of the train told the plaintiff to jump on. Assuming the conductor did so tell the plaintiff, the principle of the Hunter Case (126 N. Y. 18) would, we think, be applicable and call for a nonsuit. The train here, according to the evidence on the part of the plaintiff, was going at about the rate of two miles an hour. In the Hunter case the rate was from one to two miles an hour. In the Hunter case the danger was apparent, and so it was here. We think the judgment should be affirmed.

Present— Hardin, P. J., Martin and Merwin, JJ.


author: Merwin, J.:

text:
    Christian Cook, Respondent, v. Josephine Rowell, Appellant.
    Judgment affirmed, 'with costs.—
   Merwin, J.:

I fail to find in this case any good ground for reversal. The action is on two notes, and the defendant cannot complain because the plaintiff has recovered on but ofie. Whethei the defendant in fact indorsed the last note, and whether there was any duress as to the indorsement of either, were questions of fact and disposed of by the referee in favor of plaintiff. The giving of time was a sufficient consideration." The defendant says she was not in any event to be troubled or called on for pay, but this, if a defense, was a question of fact. The defendant says that more interest was allowed than was demanded. The argument is based on what was evidently a .clerical error. Besides, the aggregate of the demand is more than the recovery. The defendant was ari accommodation indorser for the maker for valuable consideration and liable for the full amount. The judgment should be affirmed, without opinion.

Hardin, P. J., and Martin, J , concurred.


text:
    Fred C. Biggs and Others, Respondents, v. Homer W. Rightmeyer and Others, Appellants.
   Order affirmed.


text:
    Richard Cussack, Respondent, v. Homer W. Rightmeyer and Others, Appellants.
   Order affirmed.


text:
    James B. Wise and Frederick Gayer, Appellants, v. Clinton W. Rider, Respondent.
    Judgment affirmed, with costs.—
   Martin, J.:

A through examination of the evidence contained in the appeal book has led us to the conclusion that the findings of the trial judge were fully sustained, and that the court properly directed a judgment dismissing the plaintiffs’ complaint, with costs. The opinion of the learned trial judge so clearly presents the questions involved and the principles of law which govern them, as to render any further discussion unnecessary. We have also examined all the rulings of the trial court to which our attention has been called by the appellants, but have found none that would justify a reversal of the judgment, or that require special discussion. It follows that the judgment should be affirmed.

Hardin, P. J., and Merwin, J., concurred.


author: Hardin, P. J.:

text:
    The Binghamton Opera House Company, Appellant, v. The City of Binghamton, Respondent.
    Judgment affirmed, with costs.—
   Hardin, P. J.:

Plaintiff seeks to recover possession of the premises described in the complaint, the same being the premises sought to be acquired by the defendant for the extension of Henry street in virtue of proceedings in condemnation instituted under the charter of tiie defendant. This action was commenced on the 28th of December, 1892, and in the complaint it was alleged that the plaintiff acquired title, which was theretofore possessed and held by Edward J. Pat* teréoir and Jennie Patterson to the lands described in the complaint, the same having been purchased at a foreclosure sale had upon a mortgage executed by the Pattersons to Charles Schlager and another, and subsequently assigned to the Binghamton Trust Company, and by it foreclosed. At the sale Francis W. Downs became th© purchaser, and a few days after the purchase he transferred his right, title and interest in the premises so purchased to the plaintiff. The complaint alleges that the defendant wrongfully took possession of the premises on the 12th of December, 1892, and that the defendant still withholds the same from the plaintiff. The defendant admits instituting proceedings under* its charter to acquire the premises for street purposes mentioned in the complaint, and that condemnation proceedings were conducted under the charter, and a\ ers u that it did and performed on its part all the conditions necessary and requisite to be performed to acquire the right to use as a street in behalf or and for the city of Binghamton, and that said city duly acquired the right to open, use and continue said street.” It also alleges u that plaintiff assented to and acquiesced in the taking of the property described in the complaint by this defendant, and, in pursuance ot a notice theretofore given, took and caused to be removed from said premises the buildings thereon, thereby assenting to the proposed taking by defendant and lessening the price affixed on said property one hundred dollars.” The defendant avers by way of answer ,lthat possession of the premises embraced in the extension of Henry street was taken by and with the consent and permission of the plaintiff herein.” The trial court has, in its findings of fact, stated the conclusions reached upon numerous questions relating to the validity, of the proceedings of the defendant to acquire title to the property in question. The trial court has- found that there was a dispute as to the award made in the condemnation proceedings in the following language: “ That on the 18th day of August, 1892, the right to receive, and ownership of the award therein, was disputed between Edward J Patterson and Jennie Patterson on the one part, claiming the same, and the Binghamton Opera House Company, also claiming the right to said award, and by reason of such dispute and in pursuance of and under a resolution of the common council of the city of Binghamton duly passed and approved by its mayor, as set out in finding twenty-eight herein, the defendant paid to the office of the clerk of the county of Broome, as clerk of the Supreme Court, the said sum of $6,170.00, being said award, which was duly received by said clerk, and defendant, at the time of such Eayment, accompanied the same with, and anded the said county clerk, a copy of said resolution containing the facts and circumstances of the case, and the amount of said award and such other facts and circumstances as related to the ascertaiment of the award.” We think the finding was based upon sufficient evidence to support the same. The court also found thatu Soon after the 18th day of August, 1892, and upon and after the 'payment of the award to the office of the clerk of the county of Broome, the defendant lawfully, and with the assent of the plaintiff, entered upon the land described in the complaint, pursuant to the resolution of the common council declaring their determination to make such improvement and street, and caused the said street to be opened, worked and used, which was the only possession of the said premises described in the complaint by the defendant.” The evidence upon the trial discloses the fact that Judge Downs, who purchased the property in behalf of the plaintiff, had taken ‘some part in the proceedings instituted by the defendant to open a street across the lands, and had advocated the action of the common council in that direction, and it appears that some surveys were made and monuments were placed and maps made and filed under the resolution of the common council. Some other evidence was given tending to support the conclusion of fact just stated. The court found as conclusion of law that the possession taken by the defendant of, and dominion exercised over, the premises described in the complaint, was lawful. It seems to follow that the plaintiff was not entitled to a judgment in ejectment against the defendant. '(6 Am. & Eng. Ency. of Law, 587-594.) It seems not improbable that this action was brought more for the purpose of testing the plaintiff’s supposed right to the award in virtue of its acquisition of the title of Mr. Downs, who was purchaser at the mortgage foreclosure sale; and the elaborate argument submitted by the learned counsel for the appellant upon questions relating to the validity of the condemnation proceedings, and upon the supposed rights of the plaintiff to participate in the award, need not be passed upon at this time, inasmuch as we have expressed our views in the case of Patterson against this same defendant at the case heard at this term, which, if adopted, will lead to a solution of some of the questions that are embraced in the argument of the appellant. Besides, all the parties interested are not before the court. Inasmuch as we have reached the conclusion that the trial court was warranted in finding that the possession of the defendant was non unlawful at the time of the commencement of this action, we sustain the result there pronounced.

Merwin, J., concurred; Martin, J., not voting.


text:
    William H. McDonald, Appellant, v. The Supreme Sitting of the Order of the Iron Hall.
   (See stipulation.)

      See Moshier v. The Supreme Sitting of the Order of the Iron Hall, (reported ante, page 394,)-[Rep.


text:
    William H. McDonald, Appellant, v. The Binghamton Trust Company, Receiver etc., of The Supreme Sitting of the Order of the Iron Hall, Respondent.
   (See Stipulation.)*


text:
    Third Department,
    July Term, 1895.
    Arthur T. Bennett, Respondent, v. United Life Insurance Association of New York, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    Edward R. Ladew and Another, Appellants, v. Charles D. Rathbone and Another, Respondents.
   Judgment affirmed, with costs and disbursements on opinion of trial court. No opinion


text:
    The People of the State of New York, Respondent, v. The Grand Lodge of the Empire Order of Mutual Aid of the State of New York; Jane Draper, Claimant, Appellant.
   Order affirmed, with costs and disbursements. No opinion.

Putnam, J., not acting.


text:
    In the Matter of the Judicial Settlement of the Estate of William Moore, Deceased.
   Decree affirmed, with costs and disbursements to be paid out of the estate. No opinion.


author: Herrick, J.: Putnam, J.

text:
    Isaac Teetsel, Respondent, v. William H. Simmons, Clarence E. Dunham, Charles Mulford and James Williamson, Appellants.
    Judgment reversed and a new trial granted, coste to abide the event.
    Mem. by Herrick, J.; Putnam, J., dissenting.—
   Herrick, J.:

It seems to me that the evidence in this case establishes that the switchboard, upon which the plaintiff was standing at the time of the accident, was placed there to be used for the purposes of a switchboard Only, and not as a part of a passageway for the workmen of one room, or part, of the icehouse to the other; that its occasional use as a passageway by some of the workmen was not in pursuance of any custom or by any authority of the defendants; that the board was reasonably sufficient for the purpose for which, it was intended it should be used, that is, as a switchboard; that the accident happened by reason of the careless act of a fellow-servant while not in the performance of any duty necessary to be performed in the course of his employment. It follows from these conclusions that the judgment should be reversed. Judgment reversed and a new trial granted, costs to abide the event.

Mayham, P. J., concurred.

Putnam, J.

(dissenting): While not very clear about this case it seems to me it was properly submitted to the jury. The admission of defendant Simmons, the statement of defendants’ witness, Bumery, which tended to show that plaintiff was properly on the board, and other evidence in the case, I think, allowed the judge to submit the case to the jury.


text:
    Catharine J. Brown, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment affirmed, with costs and disbursements. No opinion.


text:
    Jacob Kalinsky, Appellant, v. The Albany Railway, Respondent.
   Judgment affirmed, with costs. No opinion.

Herrick, J., not acting.


text:
    David Donahue, Appellant, v. John H. Drake and William D. Stratton, Respondents.
   Judgment affirmed, with costs. No opinion.


text:
    Henry F. Gillig, Appellant, v. George C. Treadwell Company, Respondent.
   — Order on opinion of Special Term, with ten dollars costs and disbursements. No opinion.-

Herrick, J., not acting.


text:
    Martin Walsh, Respondent, v. Henry Savage and Patrick H. Savage, Appellants.
   Judgment affirmed, with costs and disbursements. No opinion.


text:
    The Roscoe Water Company, Appellant, v. Louis Sipple, Respondent.
   Award and judgment affirmed, with costs. — No opinion.


author: Fursman, J.:

text:
    Frances E. Muller, Respondent, v. Willard G. Wilcox, Appellant.
    Judgment affirmed, with costs.—
   Fursman, J.:

In September, 1890, the plaintiff’s husband owed a debt of sixty dollars to the defendant. The defendant thereupon wrote her proposing to take her goods and store them for her, and asked her to give him an order for them “ so no other creditors could touch them.” She agreed to this by a letter in these terms: UI Hereby authorize you to take, remove and keep A th6 goods, ilsame being in payment or your account made for supplies while living in your village.” This was August 20, 1890. On September first the plaintiff wrote: “Igive yoct order to hold said goods in your possession belonging to me until such time as I can take care of them.” It is clear that up to this time the plaintiff: had not thought of pledging her goods foi payment of her husband-’s, debt, nor to do anything more than to pro* tect her right in them against her husband's creditors. She owed no debt, either to the plaintiff or any one On the same day she wrote to the defendant that she appreciated I his kindness, and expressed her belief that he would “do right” by her. There was evidently a very friendly relation between these parties, and no one carefully reading the evidence can fail to see that this woman < confided fully in the honesty and friendship of the defendant. She seemed to believe that her goods might be taken to satisfy her husband’s debts, and, fostering this belief, the defendant, on the 2d of September, 1890, wrote her: “ I enclose a -writing which please sign and return to me. When I have this I can hold the goods together in face of due process of law any party may attempt. * * * Of course, this writing takes the goods absolute, but it is not my wish to hold them. I hope and trust that the time will come when all these goods will be wanted and used as heretofore.” The defendant knew that the plaintiff was not responsible for her husband’s debt to him, nor for any other debt of his. It was a scheme to collect from her her husband’s debt by representing to her that her property would, be safer from her husband’s creditors in his hands than in hers, and, relying upon his representations and friendship, she placed them there. After-wards the defendant sold them, “ in such a way, he could get them together again ” if plaintiff would pay her husband’s debt to him, with interest, and his charges for storing the goods. The referee finds the value of the goods sold to pay a debt of $60, which the plaintiff did not owe, to be $331.88. The evidence in the case is practically without contradiction, and justifies the conclusion of the referee that the defendant obtained possion of the goods by fraud. The question in the case is wholly one of fact, and the referee having found for the plaintiff upon sufficient evidence the judgment should not be disturbed.

Putnam and Herrick, JJ., concurred.


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    Fifth Department —
    Decisions Handed Down July 1 and 15, 1895.
    Frank D. Perry and Another, Appellants, v. The Lehigh Valley Railway Company, Respondent
   Motion denied.


text:
    The German-American Bank of Tonawanda, N. Y., Respondent, v. Cornelius Daly, Appellant
   —Judgment affirmed.


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    Allen J. Arnold and Others, Appellants, v. James Fee and Another, Respondents
   Memorandum of decision amended so as to read as follows: Judgment affirmed, with costs, on opinion of Rumsey, J., at Special Term, with leave to the plaintiffs to amend their complaint within twenty days on payment of the costs of the demurrer and of this appeal.


author: Dyman, J. :

text:
    Peter S. Van Orden, Appellant, v. Charles Krouse and Others, Defendants; Hugh McGinn and Another, Respondents.

      Undertaker — action to impress upon the real estate of a decedent a trust for funeral expenses — demurrer.
    An undertaker, who officiated at tke funeral of one Jane McCabe Krouse, was not employed to render the services or furnish the articles. Mrs. Krouse died intestate and no administrator of her estate was appointed.
    In'an action brought by the undertaker to impress a trust upon certain real estate belonging to her at the time of her death sufficient to pay her funeral expenses,” the complaint was demurred to for insufficiency,
    JSeld, that there was no legal principle upon which the action could be maintained, and that the demurrer should be sustained.
    Appeal by the plaintiff, Peter S. Yan Orden, from a judgment of the Supreme Court in favor of the defendants, Hugh McGinn and another, entered in the office of the clerk of the county of Rockland on the 27th day of April, 1894, upon the decision of the court rendered at the Rockland Special Term dismissing the complaint, with notice of an intention to bring up for review upon such appeal’an order of the Special Term, bearing date September 24, 1894, and entered in the Rockland county clerk’s office, sustaining the demurrer interposed by said defendants to the complaint.

      Garrett Z. Snider, for the appellant.

      Wm. F. Wyckoff, for the respondents.
   Dyman, J. :

This is an. equitable action to impress a trust upon certain real property belonging to Jane McCabe Krouse, deceased, at the time of her death, for her funeral expenses.

She died intestate, and the plaintiff, who was an undertaker, buried her and furnished all the necessary articles for her funeral and interment. The plaintiff was not employed to render the services or furnish the articles. The husband of the deceased is insolvent and she died intestate. No administrator of the estate has been appointed and the plaintiff desired to have his claim declared to be a lien upon the real property of the deceased. There was a demurrer to the complaint for insufficiency, which was sustained, and the plaintiff has appealed from the judgment sustaining the demurrer.

There is no legal principle upon which this action can be maintained and the judgment must be affirmed, with costs.

Peatt, J., concurred; Brown, P. J., not sitting.

Judgment affirmed, with costs.


author: Dykman, J.:

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    William F. Stokes, an Infant, by John H. Stokes, his Guardian ad Litem, Respondent, v. The Atlantic Avenue Railroad Company of Brooklyn, Appellant.

      Dismissal of a complaint — when not vpon the merits.

    Upon ttie trial of an action at Circuit before a jury, the complaint was dismissed at the close of the testimony on the part of the plaintiff, and a judgment of dismissal was entered. No question was submitted to the jury, nor was a verdict directed by the court. Subsequently the defendant made a motion to amend the judgment so that it should appear that the complaint was dismissed upon the merits.

      Held, that it would be not only irregular but erroneous for the court to dismiss such a case upon the merits, and that the motion to so amend the judgment was properly denied.
    Appeal by the defendant, The Atlantic Awenue Railroad Company of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of March, 1895, denying tbe defendant’s motion to correct and amend tbe clerk’s minutes of tbe trial and tbqpostea or judgment herein.
    Tracy, Boardman & Platt, for tbe appellant.

      G. Washbourne Smith, for the respondent.
   Dykman, J.:

This is an appeal from an order made at Special Term denying a motion by tbe defendant to amend tbe judgment in tbis action by inserting after tbe word dismissed ” tbe words upon the merits of tbe action.” The suit was brought for, the recovery of damages for personal injuries to tbe plaintiff. Upon tbe trial at Circuit before a jury upon the close of tbe testimony upon tbe part of tbe plaintiff, tbe complaint was dismissed and judgment of dismissal was entered. No question was submitted to the jm*y nor was tbe verdict directed by tbe court.

In such cases it is not only irregular but would be erroneous for tbe court to dismiss tbe case upon tbe merits, or for a clerk to insert in tbe judgment that tbe dismissal was upon tbe merits. (Martin v. Cook, 37 N. Y. St. Repr. 733.)

All authorities are harmonious upon this subject. The case last cited was an action brought by a servant against bis master to recover damages for personal injuries. After tbe plaintiff bad rested, on motion of defendant’s counsel, the court dismissed the complaint upon the merits. On the appeal from that order the words “ upon the merits ” were stricken out and the court held that a dismissal in such a case was not upon tbe merits. The dismissal of tbe complaint in this case was equivalent to a nonsuit and should be treated in tbe same way.

If tbe counsel for tbe defendant, upon the trial, bad procured a dismissal upon tbe merits, and tbe judgment bad been so entered, it would have been erroneous, as we have already seen, and would have been corrected upon motion.

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

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

Order affirmed, with ten dollars costs and disbursements.


author: DyKman, J.:

text:
    Andrew Cosgriff and Others, Respondents, v. William Dewey, Appellant.

      A ruling of the trial judge — cannot be appealed from — how reviewed.

    No appeal can be taken from an order made upon a ruling of the trial judge during the trial of an action. All exceptions to such rulings are presented by an appeal from the final judgment. An appeal from such an interlocutory order is premature and will be dismissed.
    Appeal by tbe defendant, William Dewey, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Rockland on the 20tii day of November, 1894, denying the defendant’s motion to dismiss the complaint and directing a reference and appointing a referee.

      A. S. Toin/phins, for the appellant.

      Irving Brown, for the respondents.
   DyKman, J.:

This is an appeal from an order denying the motion of the defendant to dismiss the complaint upon the trial and apjiointing a referee to take proof of the amount and value of the rock quarried or removed by the defendant from the premises referred to in the complaint, and of such material sold by him subsequent to the 1st day of March, 1892; also of the expenses of quarrying, removing and selling the same and of the profits thereof, and report to this court with his opinion.

The order so entered is an interlocutory order, under which testimony is to be taken for the information of the court.

Upon the coming in of that testimony the court will enter a final judgment.

No appeal can be taken from an order made upon a ruling of the trial judge during the trial. All exceptions to such rulings are presented by the appeal from the final judgment.

This appeal from the interlocutory order is premature and must be dismissed.

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

Appeal dismissed, with costs.


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    The People of the State of New York ex rel. William Kinsella, Relator, v. Frederick W. Wurster, Commissioner of the Fire Department of the City of Brooklyn, Respondent.

      Oertiorwi — upon what papers the case will be hea/rd — test of membership in file Brooklyn fire depa/rtment.

    Upon the return to a writ oí certiorari the case is not to he heard and decided upon the return alone, hut upon the return and the papers upon which the writ was granted.
    Where a man is appointed temporarily upon the fire department of the city of Brooklyn, or as a laborer merely, he cannot he said to he a member of the force although he might be called upon to hold the hose at a fire. Such membership depends somewhat upon the intention of the parties making and accepting the appointment. The giving of a badge and fire box key is evidence thereof, but the matter is to be determined upon all the facts and circumstances disclosed.
    CeetioRAIíi issued out of the Supreme Court, and attested the 26th day of May, 1894, directed to Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, commanding him to certify and return to the office of the clerk of the county of Kings all matters in reference to the appointment or appointments of William Kinsella as a member of the fire department of the city of Brooklyn and all proceedings and testimony had and taken touching the removal of said William Kinsella from membership in the fire department of the city of Brooklyn and to answer the allegations contained •in the petition of the said William Kinsella.

      Edward, F. O’Dwyer, for the relator.

      Albert G. McDonald and H. O. Wood, for the respondent.
   Pratt, J.:

I think the relator was a member of the force for extinguishing fires although it is denied by the respondent.

The case relied on by respondent (People ex rel. Sims v. Fire Commissioners, 13 N. Y. 437) has been qualified so that the case is not to be heard and decided alone upon the return, but upon the return and the papers upon which the writ of certiorari was granted. (People ex rel. Peck v. Comrs., 106 N. Y. 64.) In that case Judge Earl, in writing the opinion, said: "The practice prior to the adoption of the present Code required that the hearing upon the return to a writ of certiorari should be solely upon the return. (People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437.) But by section 2138 of the present Code it is now required that the hearing upon the return to a writ of certiorari must be had upon the writ and return and the papers upon which the writ was granted;' under this section, where the return meets all the allegations of fact contained in the writ and the papers upon which it was granted and traverses, them, then the hearing must be confined to the facts stated in the return'.” (106 N. Y. 64.)

The respondent’s statements that relator is not a member of the force amounts only to an opinion, but the facts and circumstances attending his relations to the force and appearing in the writ, return and papers, must be considered and the issue decided upon them.

"Where a man is appointed temporarily, or as a laborer merely, he cannot be said to be a member of the force, although he might be called upon to hold the hose at a fire. It depends somewhat upon the intention of the parties, making and accepting the appointment. The giving of a badge and box key is evidence thereof, but the test is to be determined upon all the facts and circumstances disclosed. It is stated in the return that relator was hired as a laborer, never wore the uniform of the department and never was upon the payroll. From all the facts, I am constrained to hold that he was never a member of the force within the meaning of the statute requiring a trial before the department can discharge him, but that he falls within the class that the commissioner can discharge without trial.

"Writ quashed, without costs.

Brown, P. J., and Dykman, J., concurred.

Determination confirmed, without costs.


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    The People of the State of New York ex rel. Joseph E. Smith, Relator, v. Frederick W. Wurster, Commissioner of the Fire Department of the City of Brooklyn, Respondent.

      Certiorari — what papers will he considered by the court ■ — denial of a conclusion of law.

    In determining the question as to whether a person should he held to he a member of the force for extinguishing fires in the city of Brooklyn, upon the return to a writ' of certiorari to review the proceedings of the fire commissioner of said city in discharging such person, the court will consider the petition for the writ and the affidavits annexed thereto as well as the return. The denial of a conclusion of law in the return is a futile method erf defeating the relator.
    Oeetioeaei issued out of the Supreme Court, and attested the 19th day of March, 1894, directed to Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, commanding him to certify and return to the office of the clerk of the county of Kings all matters in reference to the appointment or appointments of Joseph E. Smith as a member of the fire department of the city of Brooklyn and all proceedings and testimony had and taken touching the removal of said Joseph E. Smith from membership in said department, and also to return a' .full answer to the allegations con-' tained in the petition of the said Joseph E. Smith.

      Edward F. O'Dwyer, for the relator.

      Albert G. McDonald and H. O. Wood, for the respondent.
   Pratt, J.:

Considering all the circumstances I think plaintiff should be held to be a member of the force for extinguishing fires.

To determine the question the court will consider the petition for the writ and affidavits annexed thereto as well as the return. The denial of a conclusion of law in the return is a futile method of defeating the relator. The latter was certainly not employed as a laborer, but as a necessary member of the fire force. It is clear he was originally appointed on the force where he served for nearly ten years after having qualified regularly. It is too late, and too transparent a fiction to succeed, to claim the relator is not on the force.

The judgment should be for relator.

BeowN, P. J., and DyiíMAN, J., concurred.

Determination annulled and relator restored to his position, with fifty dollars costs and disbursements.


text:
    The People of the State of New York ex rel. Frank Bernard, Relator, v. Frederick W. Wurster, Commissioner of the Fire Department of the City of Brooklyn, Respondent.

      Brooklyn fire department —facts insufficient to show membership therein.

    The fact that a person assisted at fires or wore the costume of a fireman is imma terial in the determination of the question as to whether he was employed simply as a laborer, and as such was not a member of the force for extinguishing fires in the city of Brooklyn.
    Ceetioeaei issued out of the Supreme Court, and attested the ‘Tth day of March, 1894, directed to Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, commanding him to certify and return to the office of the clerk of the county of Kings the matters in relation to the appointment or appointments of Prank Bernard as a member of the fire department of the city of Brooklyn, and all proceedings and testimony had and taken touching the removal of said Frank Bernard from membership in said department, and also to return a full answer to the allegations contained in the petition of the said Prank Bernard.

      Edward F. O'Dwyer, for the relator.

      Albert G. McDonald and H. O. Wood, for the respondent.
   Pratt, J.:

We are of the opinion that the relator herein was employed simply as a laborer, and, as such, was not of the force for extinguish ing fires. The fact that he may have assisted at fires or worn the costume of a fireman is immaterial. He was in the employ of the department as a day laborer, and could have been called upon to perform any duty.

Therefore, the writ should be quashed, without costs.

Brown, P. J., and Dykman, J., concurred

Determination confirmed, without costs.


text:
    Aaron A. De Grauw, Respondent, v. Samuel A. Warner, Appellant.

      Trespass upon lands — who cannot maintain an action therefor.

    In an action "brought to recover damages for trespass upon lands, alleged to have been committed in 1889, the proof showed that the defendant went into possession of the premises in 1887, immediately after a conveyance of.the property to him, and had remained in possession ever since.

      Held, that that fact was fatal to the plaintiff's action.' A person out of possession of real estate cannot maintain an action for trespass while he is out of possession.
    Appeal by the defendant, Samuel A. Warner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 26th day of October, 1892, upon the verdict of a jury for six cents damages, rendered after a trial at the Queens County Circuit.
    The action was brought to recover damages for trespass, as alleged, upon the plaintiff’s lands by the defendant.

      Charles DeKay Townsend, for the appellant.

      Henry A. Monfort, for the respondent.
   Pratt, J.:

The conveyance to defendant includes the locus in quo and so do several of the instruments execnted at the time with intent to vest the title in him. The conveyance from plaintiff to defendant’s grantor, executed and delivered at the same time, is defective by the omission of one or more courses, and the description is, therefore. imperfect. But, as plaintiff had knowledge of all the conveyances and of their object, was present when they were delivered, gave no notice of any claim on his part, and received the whole of tiie consideration money, we think be is clearly estopped from advancing any claim to tbe premises.

Tbe action is for trespass alleged to have been committed in 1889. Tbe proof is that tbe defendant went into possession in 1887, immediately after tbe conveyance to him, and has remained in possession ever since. That proof was not disputed, and the correctness was conceded. Tbe fact is fatal to this action.

One out of possession cannot maintain an action for trespass while he is out of possession. (Wood v. Lafayette, 68 N. Y. 181.)

Tbe judgment must be reversed and new trial must be bad, with costs to abide event.

BeowN, P. J., and Dyeman, J., concurred in result.

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


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    William Spring, Respondent, v. Watson H. Bowne, as Surviving Partner of the Firm of Thomas B. Bowne & Son, Appellant.

      Irvjwy to a vessel — grounding at the doelc — wianee between complaint and'proof, disregarded.

    The complaint in an action brought to recover damages for injuries done to the plaintiff’s canal boat, alleged that the plaintiff undertook to transport in his canal boat a cargo of coal consigned to the defendant from. Weehawken to Zerega’s dock in Westchester creek; that upon his arrival at the creek the defendant assumed to tell him where to piace his boat for the purpose of delivery, and that, by complying with the orders of the defendant, his boat grounded and was strained and damaged. There was also an allegation that the defendant promised and agreed, in case plaintiff complied with his request to move his boat to a place designated by the defendant for the purpose of unloading, to guarantee and save harmless the plaintiff against injury. The plaintiff offered no proof in support of this latter allegation.

      Held, that as there was a cause of action stated in the complaint, leaving out the guaranty or indemnity clause, it was competent for the court to treat it as surplusage;
    That a variance may be disregarded when no proof is furnished that the adverse party has been misled to his prejudice.
    Appeal by the defendant, Watson II. Bowue, as surviving partner of tbe firm of Thomas B. Bowue & Son, from a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the' 13th day of February,, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 13th day of February, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Herbert Green, for the appellant.

      Stewart & Macklin, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered on a verdict of a jury. The suit was brought to recover damages for an injury to a canal boat.

There is no exception in the case except to a denial of the motion to dismiss the complaint made when plaintiff rested, and again when the evidence was closed.

The action was one which, under the old practice, would have-been called an action on the case. The plaintiff undertook to transport in his canal boat a cargo of coal consigned to the defendant from Weeliawken to Zerega’s dock, in Westchester creek, and he claimed that upon his arrival at the creek the defendant assumed to-tell him where to place his boat for the purpose of delivery, and that by complying with the orders of defendant his boat grounded and was strained and damaged. It was tried and submitted to the jury as a negligence suit. There was an allegation in the complaint that defendant promised and agreed, in case plaintiff complied with his request to move his bo'at to a place designated by the defendant for the purpose of unloading, to guarantee and save plaintiff -harmless against injury. IJpon this obligation the plaintiff offered no proof, and this fact was made by the defendant his principal ground of objection in the case, insisting that it was such a variance as to prevent the plaintiff’s recovery.

This contention is not sound. There was a good cause of action stated in the complaint leaving out the guaranty or indemnity clause, and it was competent for the court to treat it as surplusage.

The rule is well settled that a variance may be disregarded when no proof is furnished that the adverse party has been misled to his prejudice. (Code, §§ 539, 540 and 541; Hauck v. Craighead, 4 Hun, 561; Gossler v. Lissburger, 19 Wkly. Dig. 291.)

The issue was whether the evidence of plaintiff, if believed by the jury, brought the case within the rule announced in O’Rourke v. Peck (40 Fed. Rep. 907), that the owner or person having possession and the control of such a structure (to wit, a dock) is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe -condition of the structure or the access to it.”

The evidence warranted the inference that the defendant assumed control of the dock and told plaintiff where to place his boat.

The case was so fairly and clearly put to the jury by the charge cf the judge, to which no exception was taken, that there could have been no misunderstanding by the jury.

The motion for a new trial was rightly overruled. We think the evidence in the case fully sustains the verdict, and that no error was committed upon the trial.

The judgment must be affirmed, with costs.

Brown, P. J., and Dykmsn, J., concurred.

Judgment and order affirmed, with costs.


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    The People of the State of New York, Respondent, v. Thomas Jones, Appellant.

      Lotteries — distinction between lottery policies and lottery tickets — judge’s eha/i'ge submitting the question to the jury — proof necessa/ry to sustain a conviction.

    'The statute recognizes a distinction between lottery policies and lottery tickets, hut it does not state in what it consists. It assumes that somebody knows and that the distinction is susceptible of proof, and that court's and juries must have proof on that subject before they can convict a person charged with - violating the statute.
    Upon the trial of an indictment for selling lottery policies there was proof given that the paper in question was what is commonly known as a lottery policy. The court, notwithstanding such proof, submitted that question of fact to the jury, accompanied by the statement that it was not a ticket.

      Held, that the trial judge erred in charging the jury that the paper in question was not a lottery ticket, and that as it did not appear that the ruling was not prejudicial to the defendant a new trial should be granted.
    Brown, P. J., dissenting.

      Appeal by tlie defendant, Thomas Jones, from a judgment of the Court of Sessions of Kings county, rendered on the 4th day of January, 1895, upon the verdict of a jury convicting the defendant of the crime of vending and selling to another what are commonly known as and called lottery policies, and also from an order made on the 4th day of January, 1895, denying the defendant’s motion, for a new trial.

      James & Thomas H. Troy, for the appellant.

      James W. Ridgway, District Attorney, for the respondent.
   Pratt, J.:

I regret to express the conviction that the learned trial judge-erred in telling the jury that the paper in question was not a lottery ticket. True, the defendant was indicted for selling lottery policies, and in one sense it may be said that it was immaterial what the paper was so long as it was not a lottery policy. But the trouble is precisely this : The statute recognizes a distinction between lottery policies and lottery tickets, but does not state in what it consists. It assumes that somebody knows and that the distinction is susceptible of proof, and that courts and juries must have proof on that subject before they can convict. There was proof here that the paper in question was what is commonly known as a lottery policy. The court, notwithstanding this proof, submitted that question of fact to the jury, accompanied by the statement that it was not a ticket. This was apparently a ruling of law the tendency of which was to help prevent the jury from entertaining a reasonable doubt whether or not the paper was a lottery policy. Non constat, since the question was submitted to them, but that the jury might otherwise have entertained a reasonable doubt whether this paper was a ticket or a. policy.

I am not able to say that this ruling did not prejudice defendant on the other questions.

A new trial should, therefore, be granted.

Dykman, J., concurred; Brown, P. J., dissented.

Judgment reversed and new trial granted.