text:
    Thomas D. Reilly, Respondent, v. Milton C. Gray, Appellant.

      'Constitutional prohibition against lotteries — does not apply to pool selling — chapter 479 of the Laws of 1887 is a general act— construction of a statute.

    A lottery is a scheme for the distribution of prizes by chance, either in money or in specific articles of other property.
    In construing a provision of the Constitution of the State of New York, its history and the conditions and circumstances attending its adoption must be kept in view.
    It was not the intention of the framers of the Constitution, either of 1821 or 1846, in the use of the word “lottery,” to include in it the subject of betting as then prohibited by statute.
    The constitutional prohibition against lotteries does not apply to pool selling, which is massed with betting and is a development thereof.
    Chapter 479 of the Laws of 1887 is not a private or local bill within the purview •of section 16 of article 3 of the Constitution of the State of New York, nor is it within the provisions of section 18 of such article. It is a general act applicable to all associations of the character referred to therein in any part of the State, and is constitutional.
    A court has nothing to do with the purposes or effect of an act of the Legislature, providing the Legislature has power to pass it, and the same rules of construction must be applied in all similar cases.
    A statute will not be declared unconstitutional unless a clear and substantial conflict exists between it and the Constitution.
    Appeal by the defendant, Milton C. Gray, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 26th day of January, 1894, upon the decision of the court rendered at the Oneida Special Term, overruling the demurrer to the complaint. The allegations of the complaint are in substance as follows:
    At the times mentioned in the complaint the Saratoga Racing Association was a domestic corporation, duly organized and incorporated under and pursuant to the laws of this State, for the purpose of improving the breed of horses, and it owned and conducted a race track and grounds situated in the county of Saratoga. Between the 15th day of May and the 15th day of October, 1892, at the said race grounds and race track and within the inclosure of the grounds, there were given and conducted by the said association upon its race course, and during thirty days only between the dates above named, certain races and trials of speed, strength and endurance of certain thoroughbred' horses, and on those days the said races and grounds were kept open for the admission of the public.
    Pursuant to chapter 479 of the Laws of 1887, there was conducted during the said thirty days at the said race track and grounds and within the inclosure thereof certain pool selling, being a scheme and device for the purpose of enabling persons who might be there present to bet and wager and to form pools dependent upon the result of each of the said races or contests. The pool selling, referred to in said act and which was so conducted upon the said race track and grounds, consisted of certain schemes known by the names of “auction pool,” “French pool” and “'bookmaking.”
    The auction pool was conducted as follows: A certain number of horses being entered to run in a certain race to be held at a certain time, any person desiring to invest money in the pool and bet on the race offers to the auctioneer or person conducting the pool a certain amount of money for the choice or selection of a horse from those entered in the race, which he supposes will be the winner. A number of bids may be offered for the first choice. The person offering the highest amount obtains the first choice of the horse which he supposes will be the winner, and he then and there names the horse selected by him and deposits the amount he has so offered for the first choice in the hands of the auctioneer or the person conducting the pools. It often occurs that after several different choices are made by various persons bidding, there remains a number of horses in the race undisposed of. These are called “the field.” These are taken together by the person or persons offering and depositing the highest amount for the same. The amount so deposited for each choice and the field (if there is a field) are added together and the whole constitutes what is called “ the pool.” Each person so depositing his money on his choice or on the field receives a card or receipt for the same, showing the horse or (if on the field) the horses selected, the amount so deposited and the total amount in the pool. The money in the pool (less the commission of the person conducting the pool) is paid to the person who selected the winning horse in the race, or, if one of the horses in the field won the race, to the person or persons who bought the field, after the determination of the race, and upon the presentation to the conductor of the pools of the card or receipt which is held by the winner.
    The French pool, so called, was conducted as follows: A list of the horses in a certain race then to be run is placed on an indicator, in open view, and to each horse contending in the race is assigned a number, a clear space being reserved for the name of each horse, with a separate dial attached which shows the number of times the horse has been chosen. A person wishing to invest money on a certain horse, purchases of the person having charge of the pool, a card or receipt commonly called’ “ a ticket,” stating at the time to the one having charge, the horse upon which he wished to purchase the ticket. The ticket so received has on its face the number corresponding with the number which is attached to the name of the horse on the indicator. When the purchase has been made there-is shown on an indicator, placed in open view, the whole number of cards, receipts or tickets that have been sold or taken on the race, and this is done from time to time as each ticket is purchased or taken. When the pool is closed the whole amount invested on the different horses, or the amount of the different cards or tickets taken on the different horses in the race, is added together and shown on a different dial in open view, called “ the total,' ’ which constitutes the pool. The total (less the commission of the person conducting the pool) is, after the termination of the race, divided in equai sums among and paid to the persons who have selected and purchased cards or tickets on the horse winning the race, upon the presentatipu of their cards or tickets. Any number of persons acting separately may choose the same or any horse in the race, and the amount paid for each card or ticket is the same. The number of cards or tickets sold or taken on each horse is unlimited, and any person may buy or take as many cards or tickets on each or upon any horse in the race as he chooses.

      The bookmaking referred to was a scheme for the distribution of money dependent upon the result of the race, and was conducted by the persons known as bookmakers, who offer to bet or wager upon any horse contending or running in any race. Any person upon the said track or grounds might apply to any bookmaker to bet upon any horse engaged or running in any of the races, and the said bookmaker makes the pool and becomes the owner of the money, so to speak, in case the horse upon which the money is so staked fails to' win the race.
    On the 1st day of August, 1892, that being one of the thirty days upon which races were given on said race track, and one of the days upon which, under the act of 1887, they might be there run and conducted, and pool selling also be there conducted, the defendant, pretending the same to be lawful, then and there conducted such pool selling according to the methods above described as “ auction pool ” and “ French pool.” At that date the plaintiff, when the races were being given and upon the grounds and within the inclosure thereof, purchased from the defendant a pool known as a French pool, conducted by defendant as above described, and did bet and wager, and did deposit and pay to defendant, and defendant received from plaintiff, the sum of $600 for the purpose that the same should be bet and staked and for an interest in such pool, dependent upon the result of a certain race, then and there, on said 1st day of August, 1892, to take place at the race track between divers horses entered in the race, among which was one thoroughbred horse known by the name Postmaster, and one other thoroughbred horse known by the name Governor Foraker. The money so staked, bet and invested was bet and wagered in all respects according to the method of the French pool, and was dependent upon the horse Postmaster winning the race, and the defendant received the same for such purpose. The schemes of pool selling in which the defendant was engaged and the pool in which plaintiff invested was at that time and place unlawful, and defendant illegally received the said $600 from the plaintiff.
    At the same date and place the plaintiff, ■ when the races were being run, and upon the grounds and within thé inclosure thereof, purchased from the defendant another pool known as the “ auction pool,” then and there conducted by defendant, according to the method of auction pool above described, and did in that manner bet, deposit and pay to the defendant, and the defendant received from the plaintiff, the sum of $550 for the purpose that the same should be bet and staked, and for an interest in,such auction pool, dependent upon the result of the race then and there to take place between divers horses, among which was the horse Postmaster and the horse Governor Poraker. The money so staked was bet and wagered according to the method of the auction pool, and was dependent upon the horse Postmaster winning the race, and the defendant received the same for such purpose. That scheme of pool selling and the pool in which plaintiff so bet and invested his money is and was at that time and place unlawful, and the defendant illegally received the said $550 from the plaintiff.
    Subsequent to August 1, 1892, and before the commencement of this action, the plaintiff duly demanded of defendant the said moneys, and the defendant refused to pay.
    The defendant demurred upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

      Milton O. Gray and W. A. Matteson, for the appellant.

      A. M. Mills, for the respondent.
   Merwin, J.:

There is practically no doubt that as the law stood prior to the passage of chapter 479 of the Laws of 1887, the transactions described in the complaint were unlawful and prohibited, and the money which the plaintiff lost could be recovered of the defendant. It is also quite evident that the Legislature, by the act of 1887, intended to legalize pool selling at certain horse races. It was so held in Brennan v. Brighton Beach Racing Association (56 Hun, 188) and that a pool-selling contract could be enforced. Hnder the allegations of the complaint, we must assume that the pool-selling transactions between the plaintiff and defendant were covered by the provisions of the act of 1887, so that if that act is valid the plaintiff has no cause of action. To meet this aspect of the case the plaintiff claims that the act of 1887 is invalid, upon the ground that it is in violation of that part of section 10 of article 1 of the Constitution of the State which provides as follows: “Nor shall any lottery hereafter be authorized, or any sale of lottery tickets allowed within this State.” This contention of the plaintiff was sustained at the Special Term, and the act in that respect was held to be unconstitutional.

The question then is whether the pool selling, in the management of which the defendant was engaged, was a lottery, within the meaning of the Constitution. We are referred to no direct authority upon this subject in this State. The question might have been raised in the Brennan case, above cited, but apparently it was not. We are referred to several cases in other jurisdictions that are claimed to have a bearing. In State v. Lovell (10 Vroom [39 N. J. L.], 458), decided in 1877, it was held that auction pools and French, pools upon horse races, like those here in controversy, were lotteries, within the Crimes Act of that State. The particular provisions of that act do not appear in the report. The charge against the defendant was the setting up of a lottery for money and selling a lottery ticket therein. In Tollet v. Thomas (L. R. [6 Q. B.] 514) it was held that a scheme for betting on horse races, quite similar to the French pool, was a game of chance, not because of the uncertainty of the event of the race, hut because of the uncertainty in the final amount of the stakes. In People v. Reilly (50 Mich. 384), decided in 1883, it was held that pool selling, where the pools, were made up of amounts bid for the privilege of selecting horses, out of those running in races, and of bets of as many as saw fit to do so by purchasing checks deposited on base-ball matches, where those who bet on the winning combination received the pool, did not constitute “ a lottery for disposing of money,” within the meaning of a municipal ordinance against keeping any “ lottery, policy* pool, bucket shop, board of trade or any like scheme or place for drawing or disposing of money, wheat or other property within the city.’* In Buckalew v. State (62 Ala. 334), where the theory of the game was that several persons contributed equal sums to a common pm-se which was awarded to the contributor whom chance so favored as to register for him the highest number in the whirl of a hand upon a pivot, this was held not to constitute a lottery.

Generally speaking, a lottery is a scheme for the distribution of prizes by chance. (2 Bouvier’s Law Diet. 127.) The prizes may be in money or in specific articles of other property. In Bishop on Statutory Grimes (§ 954) it is said to be an essential element that the lot is in some way to be cast or ascertained by the managers of the scheme. J3y the Penal Code (§ 323) a lottery is defined to be “ a scheme for the distribution of property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle or gift enterprise, or by some other name.”

In the Penal Code pool selling is not considered in the chapter concerning lotteries ” but is in the chapter concerning “ gaming ” and is classified with bets and wagers. The term seems to have first appeared in our penal statutes in chapter 1Y8 of the Laws of 18YY, entitled “ An act in relation to bets, wagers and pools.”

In Commonwealth v. Ferry (146 Mass. 203) a pool is defined to be a combination of stakes, the money derived from which is to go to the winner. It is there said that registering bets and selling pools •are not distinct kinds of unlawful business, but different parts of one transactipn, representing different stages of it.

Pool selling, as described in the complaint, is simply a scheme for facilitating betting on horse races. The manager is the stakeholder. The bettor deposits his money and selects his horse. In one kind of pool the highest bettor has the first choice of horses. The event of the race determines the winner, and he gets the whole, less the commissions of the manager. There exist all the characteristics of betting. The fact that several may combine upon the same horse does not change the character of the transaction. The pool manager has nothing to do with the race, or with the moneys, except to safely hold them until the race is decided, and then hand them over to the winner or winners, less his commissions. The essence of the whole thing is the betting, and that should determine the category to which such transactions belong.

The provision of the Constitution of 1846 was in substance the same as in that of 1821. The latter was: “ No lottery shall hereafter be authorized in this State; and the Legislature shall pass laws to prevent the sale of all lottery tickets within this State, except in lotteries already provided for by law.” (Art. Y, § 11.) For many years prior to 1821 there had existed laws for the prohibition of all lotteries other than such as should be authorized by the Legislature. (See chap. 12, Laws of 1Y83; 1 R. L. of 1813, chap. 198, page 2Y0; chap. 206 of 1819.) The Legislature, however, had by sjiecial acts authorized them to such an extent as to call for a constitutional prohibition. Evidently it was not deemed wise to' trust the Legislature on the subject. Hence, the provision in the Constitution of 1821, and continued in the. Constitution of 1816.

There had also existed prior to 1821 a law for the prevention of betting upon horse races or on any game of chance. (See chap. 11, Laws of 1802 ; 1 R. L. of 1813, 222.) This in substance was carried into the Revised Statutes of 1827-1830. (1 R. S. pt. 1, chap. 20, art. 3.) This was a subject distinct from the subject of lotteries and was so treated in the Revised Statutes and in the prior laws. The one was forbidden in the Constitution and the other was not.

In Cooley’s Constitutional Limitations (6th ed. 69) it is said: “ The meaning of the Constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it. The object of construction, as applied to a written Constitution is to give effect to the intent of the People .in adopting it.” In construing a provision of the Constitution, its history and the conditions and circumstances attending its adoption must be kept in view. (Sweet v. City of Syracuse, 129 N. Y. 316.)

It seems to, me very clear that it was not the intention of the framers of the Constitution, either of 1816 or 1821, in the use of the word “lottery,” to include in it the subject of betting as then prohibited by statute. They were distinct subjects upon the statute book and in the public mind, and if the design had been to cover both they would have been named. It is not enough to say that they both involve to some extent the same kind of evil. It may be difficult to precisely define the difference between the two. It may be said, as in People v. Elliott (74 Mich. 261, 268), that in betting there is sin opportunity for the exercise of reason and judgment, while in a lottery there is no such opportunity. It may be said that betting is not a distribution of property, but an agreement to pay the winner certain sums in a certain contingency or that the winner shall have certain sums which are deposited as stakes. But be the distinction what it may, it is very clear, from the state of the statutory law in 1816 as well as in 1821, that betting upon a horse-race was not then understood to be a lottery. That being so, we must assume that it was not meant to be included in the term “ lottery ” as used in the Constitution. The same rule must apply to the pool selling complained of, as it must be classed with betting and is a development, a combination, in the same line. It'follows, therefore, that the constitutional prohibition against lotteries does not apply.

Some, other objections to the law of 1887 were raised at the Special Term, but they were held not to be tenable. In this regard we think the Special Term was correct. The act is not a private or local bill within the purview of section 16 of article 3 of the Constitution. (People ex rel. N. Y. Electric Lines Co. v. Squire, 107 N. Y. 601.) Nor is it within the provisions of section 18 of the same article. The act is a general one, applicable to all associations of the character referred, to in any part of the State. Nor do the cases of Matter of Jacobs (98 N. Y. 98) and People v. Marx (99 id. 377) apply. No constitutional rights of the plaintiff are infringed upon, as in those cases.

Our attention is called to the peculiar character of the act of 1887 and its purpose and effect. It seems to be somewhat anomalous. But with this we have nothing to do, provided the Legislature had power to pass it. We must apply to the case the same rule of construction as in other similar cases. If the law is in fact improper and a source of evil and still within the power of the Legislature, the responsibility and the remedy are with the Legislature, and not with the courts. It has been held in many cases that a statute will not be declared unconstitutional unless a clear and substantial conflict exists between it and the Constitution. (People v. Gillson, 109 N. Y. 397; People ex rel. Carter v. Rice, 135 id. 484.) We do not find in the present case such a conflict.

It follows that the judgment must be reversed.

Martin, J., concurred; Hardin, P. J., not voting.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend his complaint within twenty days, upon payment of costs of demurrer and of this appeal.


source: Caselaw Access Project

author: JVIbrwin. J.:

license: Public Domain

text:
    Vietta Brown, an Infant, by Edward J. Shanahan, her Guardian ad Litem, Respondent, v. The City of Syracuse, Appellant.

      Use of a defective sidewalk — contributory negligence, a question for the jury — negligence of an infant — an error in the plan of construction.

    A passenger upon a street lias a right to use its sidewalk, although knowing it to he in an unsafe condition, and if he is injured it is a question for the jury whethei he was guilty of any carelessness which contributed to the injury; the degree of care required of a person approaching a situation known to he dangerous is, as a general rule, to bo determined by the jury.
    An infant, to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age, and in passing upon the question as to the contributory negligence of an infant, the age of the infant, with all the other circumstances of the case, are to be considered by the jury, and that which in the case of adults might, as matter of law, be considered contributory negligence, may, in the case of infants of tender age, present a question of fact for the jury.
    Upon the trial of an action brought to recover of a city damages for injuries alleged to have been sustained from a fall occasioned by the defective condition of a sidewalk, it was shown that the accident happened at the southeast corner of Henderson and Oak streets; that the occupant of the corner lot had built a new sidewalk on Henderson street upon a grade fixed by the city engineer of the defendant. This sidewalk, at the point where it stopped near the margin of the sidewalk of Oak street, was about a foot higher than the walk on Oak street, and the two were connected by a slant of earth about sixteen inches long.
    The trial court refused to charge, as requested by the defendant, that if the condition of the walk was the result of an error of judgment in determining the plan of construction the plaintiif could not recover.

      Held,, that the trial court properly determined that the rule as to the plan of construction did not apply.
    Appeal by tlie defendant, Tlie City of Syracuse, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tbe office of tbe clerk of tbe county of Onondaga on tbe 22d day of March, 1893, upon tbe verdict of a jury, rendered after a trial at tbe Onondaga Circuit, and also from an order entered in said clerk’s office on tbe 22d day of Marcli, 1893, denying tbe defendant’s motion for a new trial made upon tbe minutes.

      Oharles E. Ide, for tbe appellant.

      M. E. Driscoll, for tbe respondent.
   JVIbrwin. J.:

This action is based upon negligence. The plaintiff, on the 28th day of November, 1891, fell upon the sidewalk at the intersection of Oak and Henderson streets in the city of Syracuse, and the recovery in the case is for the damages sustained from the fall. Henderson street at that locality is comparatively level and runs east and west. Oak street runs north and south, and as one comes north there is a steep up grade. The accident was at the southeast corner. The occupant of the corner lot had, in the month of October previous to the accident, built a new sidewalk on Henderson street upon a grade fixed by the city engineer of the defendant. This sidewalk at the point where it stopped near the margin of the sidewalk of Oak street was about a foot higher than the walk on Oak street, and the two were connected by a slant of earth about sixteen inches long. The plaintiff was then between eight and nine years old. She came up on the east side of Oak street drawing a small sled. When she arrived at the corner at Henderson street she turned, and in the effort to step on to the new sidewalk there she slipped and fell and was injured. This was in the forenoon. It had been snowing some, and there is evidence tending to' show that the snow melted so that it was muddy at the corner.

There is evidence tending to show that the sidewalk at the comer or the connection between the two was in a defective or dangerous condition, and had been so for a sufficient length of time to charge the defendant with notice, and that such defective condition caused or contributed to the injury. The main contention of the defendant is that the evidence was not sufficient to justify the submission to the jury of the question of contributory negligence.

The plaintiff had been over the walk before and could see the step as she came to it. She is not able to describe particularly how she came to fall except that she tried to step up on to the new sidewalk and her foot slipped and she fell. The step, as she'says, was quite a big one, and there is other evidence to that effect. There was at the side a slope that she might have taken, but there is evidence showing that that was muddy.

In Bullock v. The Mayor, etc. (99 N. Y. 654), it is said that a passenger upon a street has a right to use its sidewalk, although knowing it to be in an unsafe condition, and if he is injured it is a question for the jury whether he was guilty of any carelessness which contributed to the injury. There, as here, the party made a misstep and fell. The degree of care required by a person approaching a situation known to be dangerous is, as a general rule, to be determined by the jury. (Palmer v. Dearing, 93 N. Y. 10.) An infant, to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age, and in passing upon the question of contributory negligence the age-of the infant, with all the other circumstances in the case, is to be considered by the jury. (Dowling v. N. Y. C. & H. R. R. R. Co., 90 N. Y. 670.) What in case of adults might, as matter of law, be contributory negligence, may, in case of infants of the age of the-plaintiff, present a question of fact for the jury. (Baird v. Richardson, 4 N. Y. St. Repr. 648; McGovern v. N. Y. C. & H. R. R. R. Co., 67 N. Y. 417, 422.)

We think that the question of contributory negligence was properly given to the jury. The degree of intelligence of the plaintiff'' was an element. She was a witness before the jury, and they, therefore, on that subject, had special means of knowledge. They had a. right to consider the conduct of the plaintiff at the time of the accident, as testified to by her, and the surrounding circumstances.

The defendant further claims that the court erred in refusing to-charge that if the condition of the walk was the result of an error of judgment in determining the plan of construction, then the plaintiff could not recover.

It is very evident that the city did not intend that the step between the walks should be a permanent matter. The grade upon Oak street was designed to be raised to correspond to that on Henderson street. The question was, as the court charged the jury, whether the connection between the higher and lower grade wras unsafe, as it was in fact left and had remained for a month. The court properly held that the rule as to the plan of construction did not apply.

No sufficient reason is shown for reversing the judgment, and it should be affirmed.

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

Judgment and order affirmed, with costs.


author: Mbrwin, J.:

text:
    Emma F. M. Ayres, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.

      Damages caused by an obstruction on a railroad platform, — knowledge of its existence by the company — what does not amount to negligence per se.

    The mere fact that a postal clerk throws off a mail bag at a certain place, without previous knowledge on the part of the railroad company of his intention to do so, does not constitute negligence on the part of the company.
    In an action brought to recover damages alleged to have been sustained by reason of a fall upon the platform of a railroad company’s station, in which it was sought to charge such corporation with negligence by reason of its failure to sufficiently light its platform, the court in effect charged that the j ury might predicate actionable negligence upon the failure of the defendant to light its depot sufficiently to enable the plaintiff to avoid the obstacle which caused her fall, without reference to the circumstance whether or not an obstacle of that kind had ever been there before.
    The counsel for the defendant asked the court to charge that, if the jury believed that the platform would have been lighted sufficiently, for the purposes of the passengers getting on and off the cars with safety, if the mail bag (which was the obstruction which caused the plaintiff’s fall) had not been thrown where it was, and if it was the first time that the mail bag had been thrown off there, the defendant was not liable. The court refused to so charge, and the defendant duly excepted.
    It was a question of fact, under the evidence, whether the mail bag had ever been thrown off before in the way of the passengers, and, if so, whether the defendant, through its proper agents, knew it, or, in the exercise of reasonable care, ought to have known it.

      Held, that such request to charge was material;
    That the failure of the court to charge as requested was an error which necessitated a reversal of the judgment rendered in favor of the plaintiff.
    Appeal by tbe defendant, The Delaware, Lackawanna and "Western Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of tbe county •of Oneida on tbe Ith day of April, 1893, upon the verdict of a jury rendered after a trial at tbe Oneida Circuit, and also from an order entered in said clerk’s office on tbe 1st day of April, 1893, denying tbe defendant’s motion for a new trial made upon tbe minutes, with notice of an intention to bring up for review on such appeal said order entered April 1, 1893, and also an order denying tbe defendant’s motion to put tbe case over tbe March (1893) term of tbe court a"nd the denial of a like motion made at the beginning of the trial.

      William K&mazn. for the appellant. .

      Adelbert S. CtcvrrolL for the respondent.
   Mbrwin, J.:

This action is brought to recover damages sustained, as the plaintiff claims, by reason of the negligence of the defendant. On the 2fth day of October. 1891. the plaintiff was at the station of defendant at North Brookfield for the purpose of taking the train to Utica that was due at North Brookfield from the south at thirty-three minutes past five in the afternoon. The train was about half an hour late. After purchasing a ticket, she remained in the waiting room until the arrival of the train, and it was then, as the plaintiff claims, quite dark. As the train stopped, the plaintiff, in order to reach the passenger car, passed from the door of the waiting room southerly along the platform, and while doing so stumbled and fell over a mail bag that had been thrown on to the platform by the postal clerk in the mail car as the train came along and before it stopped. The mail bag was about thirty feet southerly from the viáiting-room door. The plaintiff is a physician, and in the fall she received injuries which, as the evidence upon her part tends to show, were of a very serious character. She claims that the fall and the consequent injury was attributable to the negligence of the defendant in that the platform was not sufficiently lighted, and that the defendant should have prevented the throwing of the mail bag on to the platform in the way of passengers who were about getting on to the train.

There was evidence upon the part of the plaintiff tending to show that upon some prior occasions the mail bag had been thrown in about the same locality, and the court charged that if the conductor of the train knew of such prior deposit, then the defendant was liable for the act of the mail clerk on the occasion in question.

The question whether the platform was sufficiently lighted to enable the plaintiff, in the exercise of reasonable care, to have seen and avoided the obstacle, was sharply litigated, and, upon the evidence, it was a question of fact for the jury. The c'ourt, in effect, charged the jury that if the defendant was negligent in this regal’d the plaintiff was entitled to recover, unless there was contributory negligence on her part.

The counsel for the defendant asked the court to charge that, if the jury believed that the platform was lighted sufficiently for the purposes of the passengers getting on and off the cars with safety, if the mail bag had not been thrown there, and that this was the first time the mail bag had been thrown off there, the defendant was not liable. The court refused to so charge and the defendant duly excepted. It is now claimed that this exception is a good one.

In Carpenter v. Boston & Albany R. R. Co. (97 N. Y. 494) it was sought to charge the defendant with the consequences of the act of a postal clerk in throwing a mail bag from the postal car on to the platform, and it was held that scienter was the gist of the action; that the injury must be one which, in view of all the circumstances, might have been reasonably anticipated. It was said that the mere act of the postal clerk in throwing off the mail bag at that place, without the previous knowledge of the defendant of his intention to do so, was not negligence on the part of the defendant. A similar view was taken in Muster v. C., M. & St. P. R. R. Co. (61 Wis. 325). (See, also, Snow v. Fitchburg R. R. Co., 136 Mass. 552.)

Under the rule of the Carpenter case the request was proper, and should have been charged, provided the evidence warranted it and it was materiál.

The plaintiff claims that the uncontradicted evidence shows that the mail bag had been thrown there previous to the accident. The usual course of passengers in getting on to the train was south from the station door to the passenger car, and the point was whether the mail bag was ever thrown off south of the station door. Two witnesses testified upon this subject on the part of the plaintiff. One testified that he had been at that train nearly every week for two years; had seen the mail bag thrown off south of the entrance prior to the night in question, and within two years quite often; “ not every time I have been along there, but more or less it has been thrown off there : probably thrown off there twenty times within the two years at least calculation: it was thrown off from twelve to fifteen feet south of the waiting room door on the platform; may be twenty feet sometimes ; it varied according to where the train stopped ; ” that he took no pains to keep track in his mind of the number of times it went off at any particular place. The other witness for the plaintiff testified that before the date in question he had seen the mail bag thrown out on to the platform at different places; had seen it thrown out as far south as thirty feet from the waiting room door; could not state how frequently he had seen it thrown off south of that door; had seen it thrown off there a great many times; could not fix any particular occasion or date.

On the part of the defendant there was evidence that the train always stopped far enough north to place the door of the mail car north of the waiting-room door. The conductor of the train testified that the mail bag was never, to his knowledge, before this occasion, thrown off south of the station waiting room. He also said that as a general thing he never paid any attention to where the mail was thrown off. One of the trainmen gave similar evidence, and also testified that the trainmen have nothing to do with the mail compartment or the mail. The station agent testified that he never saw the mail bag thrown off south of the waiting-room door on any occasion when the train stopped at that station. Mr. Bryant, whose business it had been for two years and upwards before this accident to carry the mail to and from the station, testified that during tins time he had delivered the mail at the mail car and received mail from it; that prior to this night he received the mail off the car standing north of the entrance to the station; that prior to this night he never saw the bag thrown off this train at a point south of the waiting room, and that this was the first occasion he knew of its being thrown there. It was the business of Mr. Bryant to be at the station aud look after the mail bag, and he had the means of knowing whether it was left south of the station door. In view of his evidence it should not be said that upon the uncontradicted evidence the mail bag had been previously thrown off in the way of passengers. It was a question of fact for the jury to pass upon.

The request was material. For the court had, in substance, previously charged that the jury might predicate actionable negligence upon the failure of defendant to sufficiently light the depot to enable the plaintiff to avoid the obstacle, without reference to the circumstance whether or not an obstacle of that kind had ever been there before. The request was material in order to obtain the benefit of the doctrine laid down in the Carpenter case.

Hpon the evidence it was a question of fact whether the mail bag had ever been thrown before in the way of passengers, and if so, whether the defendant, through its proper agents, knew it, or in the exercise of reasonable care ought to have known it. If so, the duty arose to use reasonable caution to prevent damage from the danger. (Carpenter Case, p. 501.) In that event the question might then arise whether the platform was sufficiently lighted to enable the plaintiff, in the exercise of reasonable care, to see and avoid the danger.

We are of the opinion that the request of. the defendant should have been yielded to, and that it went so'far towards the merits of the case, as it was finally submitted to the jury, that we have no right to disregard the error.

Many other questions are presented on behalf of the defendant, but it is not important now to consider them. In subsequent stages of the case, if they appear at all, they may appear in different light.

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

Judgment and order reversed upon the exceptions and a new trial ordered, with costs to abide the event.


author: Merwin, J.:

text:
    John J. B. Primeau, Respondent, v. The National Life Association, Appellant.

      Appeal heard on the judgment roll — payment of a life insurance premium by mail — time of mailing a check — payment at a place other than the home office — forfeiture, when not permitted — tender of subsequent premiums, when unnecessary.

    Where the appeal in an action is heard upon the j udgment roll therein, it is incumbent upon the appellant in order to succeed to show that the trial court could not, in any view of the facts found, properly order a judgment for the respondent.
    Where a life insurance company authorizes, and in substance requests, a person insured by it to make payment of premiums in check and by mail, after the deposit of such check in the post office it is at the risk of the company, and the payment is deemed to have been made at the time of the deposit.
    A life insurance company has a right to receive, or to agree to receive, the premiums on its policies at some place other than its home office, or even out of the State, and an authority or request to send the same by mail is a waiver of the provisions of the policy requiring the payment of such premiums at the home office of the company.
    A forfeiture will not be permitted upon equivocal or doubtful clauses or words contained in the contract of the party who claims the forfeiture.

      Where the premiums of a life insurance policy became due on the first day of a month, and the insurer requested payment thereof by mail, there is no forfeiture of the policy from the fact that the check in payment of a premium mailed on the first day of the month was not received by the company until the following day, in the absence of any restriction in the notice, requesting the assured to send the amount of the premium by mail, notifying him that his check in payment thereof must reach the company on or before the first day of the month.
    Where an insurance company informed an assured chat his policy had lapsed and been canceled, and made no further calls upon him, and substantially admitted that if money for the payment of subsequent premiums had been tendered it would not have been received, a tender of the payment of subsequent premiums is unnecessary.
    Appeal by tbe defendant, The National Life Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 26th day of October, 1893, upon the decision of the court rendered after a trial at the Jefferson Special Term.

      W. A. Sutherland, for the appellant.

      Henry Purcell, for the respondent.
   Merwin, J.:

The appeal in this case is heard upon the judgment roll. In such a case it is incumbent on the appellant to show that the trial court could not, in any view of the facts found, properly order a judgment for respondent. (Agri. Ins. Co. v. Barnard, 96 N. Y. 525.)

The defendant is a foreign corporation located at Hartford, Conn., and is doing a life insurance business in the State of New York upon the co-operative or assessment plan. On the 10th of June, 1892, the defendant duly issued and delivered to plaintiff a policy of insurance upon his life in the sum of $2,000. The beneficiary was Kate A. Primean, the wife of plaintiff. This policy, among other things, provided that the premiums thereon should be paid at Hartford, Conn., on the first week days of the months of February, April, June, August, October and December in each year, and that a failure to make any payment of premium on or before the day it was due would work a forfeiture of the policy. The piaintiff was a resident of the city of Watertown, in this State, and he regularly paid all assessments or premiums made or called for by defendant to and including the one due December 1, 1892. Another assessment or premium became due February 1,1893. Whether the plaintiff made default in the payment of this is the main question in this case.

On the 2d day of January, 1893, the defendant sent by mail to-the plaintiff a notice, signed by its secretary, stating as follows: “The bi-monthly premium on your policy No. 1652 of $8.50, will be due and payable at this office on or before the 1st day of February, 1893. Agents are not authorized to collect the above amounts. Make all checks and post-office orders payable to the National Life Association. Please inclose this notice with your remittance and it will be stamped paid and returned to you/’ On the same page below this notice there was printed matter, headed “ Important,” and signed by the general manager of the defendant asfoilows : “Notice.— This premium is payable at Hartford, Conn., on or before February 1st.

“ While most of our members make- their payments promptly there are some who are always late, and who seem to think that their payments ought to be accepted by the company whenever they are-ready to pay. We would cail especial attention to the fact that the¡ last day of payment named- in this notice is the same as the last day of grace on a note, and that if payment is not made on-or-before the day due that the policy is lapsed, and can only be reinstated at the option of the association, and if reinstated, parties will, be required to sign a health certificate. * * *

“We inclose you an envelope directed to the company, which, piease use in sending your remittance/’

Notices, identical with this except as to the dates and amounts,, had been sent by defendant to plaintiff by mall before each of the-prior payments. The payments were all made by checks drawn to-the order of defendant upon a Watertown bank and each was sent to defendant by mail in the envelope mentioned in the notice. Thsnotice for the payment due October 1, 1892, was sent to piaintiff on September 10, 1S92, and was subsequently stamped paid October 1, 1892. The notice for the payment due December 1,1892, was sent November 10,1892, and was stamped paid December 1,1892. The payments of October 1 and December 1 were made by depositing the check and envelope in a street letter box of the post office of the city of "W atertown. which is located about twenty rods from the post office, on the day next preceding the said first October, and first December respectively, and the letters so deposited left Water-town by the evening mail, and were delivered to the defendant at its home office on the days following the mailing of the same.

On the 31st January. 1893, the plaintiff was sick and unable to attend to any business. Thereupon his wife, the beneficiary in the policy, for the purpose of paying the amount, made her check for the proper amount on a Watertown bank to the order of defendant and placed it with the notice in the envelope sent by the defendant for that purpose, properly sealed and postage prepaid, and deposited it in the same letter box where she had previously deposited like remittances to the defendant. This was done at five' o’clock in the afternoon. There was a regular collection of mail from this letter box at four o’clock in the afternoon, and collections were also made from it by the letter carriers of the post office upon their return trips from distributing a mail which at that time arrived or was due to arrive at four o’clock, and these collections, when the four o’clock mail arrived on time, were made in time for the outgoing mail that evening for New Y ork and Hartford. This four o’clock mail was late on the afternoon of January thirty-first, so that the carriers who made collections on their return from distributing it, did not take up the letter in question in time for the outgoing mail that evening which left at six o’clock. As a result, the letter to defendant left Water-town on the morning of February first, reached Hartford the evening of. that day, and was delivered to defendant the morning of February second. On that day the defendant notified plaintiff by letter that the premium was not received on the first day of February, and that in order that the plaintiff might be reinstated it wouid be necessary for him to sign a certificate of good health in a certain form. To this the plaintiff, on the third of February, caused a reply to be sent that he could not then give such a certificate. The defendant kept the check until February sixth, when it was returned to plaintiff’s wife with a letter acknowledging the receipt of the letter of the third of February and saying that, as her husband could not sign the health certificate, they return the check and have marked the policy lapsed on their books. On the eighth of February the plaintiff made an offer to defendant of the money for the premium, but tbe defendant refused to take it on tlie ground that the policy bad previously lapsed and been canceled.

The check sent by plaintiff’s wife on the thirty-first of January was a good one, and no objection was made to accepting it except that it was not received by defendant on or before the first day of February. The defendant in all the notices to plaintiff authorized and empowered him to make payments by checks upon a bank in Watertown.

On the day in question the plaintiff’s wife did not know that the four o’clock mail was late, or that the carriers went out late from the post office. She was a milliner engaged in business at a place near the letter box referred to, and had often observed the mail carriers, on their return trip from distributing the four o’clock mail, collecting mail from that box after five o’clock and before six o’clock, and when she deposited in that box the letter on the thirty-first of January, she understood and believed that the same was deposited in time to leave Watertown by the outgoing mail at six o’clock. The irregularities in the time of the collection of mail from the box in question, after the incoming of the four o’clock mail about the time in question, were due largely to the weather, which delayed the trains, and the plaintiff and his wife knew, or had reason to know, of such delays of the trains. In the month of January these irregularities were such that upon a majority of the days of that month the collections by the returning carriers were too late for the evening mail. ' •

These are the main facts, as appearing from the findings, on the subject of the disputed payment. It was held by the Special Term that the mailing of the cheek by the plaintiff’s wife on January 31, 1893, was such an act on the part of plaintiff and his wife as prevented the defendant from declaring the policy lapsed, and that the policy did not lapse and become null and void on February 1, 1893.

It is to be observed that the defendant authorized the plaintiff to make payments in checks upon a Watertown bank. It is also very clear that the defendant authorized, and, in substance, requested the plaintiff to make the payment in question, as well as previous payments, by mail. It sent each time to the plaintiff an envelope directed to the company and requested him to use it in sending his remittance, and the payments had previously been so made. We have then, in effect, a case where, by the authority of the creditor, a payment is sent by mail. In such a ease, after deposit in the post office, it is at the risk of the creditor, and the payment is deeded to have been made at the time of the deposit. (2 Greenl. on Ev. § 525; Pars. on Cont. 620: 2 Chitty on Cont. [11th ed.] 1106; 2 May on Ins. § 340: Morgan v. Richardson, 13 Allen, 410, 411; Buell v. Chapin, 99 Mass. 596; Colvin v. U. S. Mut. Accident Assn., 66 Hun. 543.) In Palmer v. Phœnix Mut. Life Ins. Co. (84 N. Y. 71) it was held that if money was sent to the defendant by mail, according to its request, it was at the defendant’s risk, and the same thing was held as to a cheek in Kenyon v. K. T. & M. M. A. Assn. (122 N. Y. 247).

If the payment in question took effect at the time of deposit, then there was no default, and the defendant would not be in a position to claim a forfeiture. It had a right to receive it, or agree to receive it. at some other place than its home office, or out of the State. (Hastings v. B. L. Ins. Co., 138 N. Y. 474, 479.) Authority or request to send by mail was a waiver of the provisions for payment at the home office.

But it is argued that the letter should have been mailed in time, so that by the regular course of mail it would have reached the defendant on the first day of February. This depends on whether the authority from defendant to the plaintiff to make payment by mail was restricted in that way. . There was no su'ch restriction, in terms at least, in the notice the defendant sent to the plaintiff. That stated that the premium was due and payable at the home office, or at Hartford, on or before the first day of February, It also, in effect, stated that the plaintiff might make payment by mail in Watertown checks. It did not state that, if payment was made in that way, the mailing must be made long enough before the first of February to enable the ietter to reach the defendant by the first.

A number of cases are cited as to the rule in case of mailing notice of protest to a party living at the same place with the party giving the notice. Those cases hardiy apply here. The case of Hodgkins v. Montgomery (34 Barb. 213) seems to have been reversed in the Court of Appeals. (See 41 N. Y. 620.)

In the answer in the present case it is alleged that the only objection the defendant made to accepting the check was that it was not received by the defendant on or before the first day of February. If the defendant, although authorizing or requesting payment by mail, still designed to claim forfeiture if the letter did not get to the home office by the first of February, should it not have so stated in its notice to the plaintiff ? A restriction of that kind and with that effect should not be inferred from doubtful language. A forfeiture will not be permitted upon equivocal or doubtful clauses or words contained in the contract of the party himself who claims the forfeiture. (Baley v. Homestead Fire Ins. Co., 80 N. Y. 23; Griffey v. N. Y. Cent. Ins. Co., 100 id. 417.)

In view of the authority to make payment.by mail in checks, and the failure to give any specific restriction as to the time of mailing, and in view of the circumstances under which the mailing was in fact made, it should not, I think, be held that the defendant had a right to claim a forfeiture.

It is further claimed by the defendant that the plaintiff cannot maintain this action because he has made no tender of premiums coming due since February 1, 1893. The defendant informed the plaintiff that his policy had lapsed and been canceled, made no further calls upon him, and substantially admits that if money for subsequent premiums had been tendered it would not have received it. We think that a tender for subsequent premiums was not necessary. (Meyer v. Knickerbocker Life Ins. Co., 73 N. Y. 516, 528, and cases cited; 2 May on Ins. § 358.) No fault is found with the form of the judgment.

These considerations lead to an affirmance.

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

Judgment affirmed, with costs.


author: JVIerwin, J.:

text:
    Frances E. Stuart v. Ambrose Blatchley and Others. Nellie V. Watson and Another, Appellants. Silas P. Brown and Another, Respondents.

      Pleadings in a, partition, suit — a demurrer may not be served by one defendant to another defendant’s answer.

    By section 140 of the Code of Procedure all the forms of pleading theretofore existing were abolished, and thereafter the forms of pleading in civil actions in courts of record and the rules by which the sufficiency of the pleadings should be determined were those prescribed by that act.
    A demurrer can only be served in the particular cases prescribed by the Code of Civil Procedure, and no pleading is demurrable unless it is subject to one or more of the objections specified in the section of the Code of Civil Procedure defining the grounds of demurrer.
    In an action of partition no answer served pursuant to section 1543 of the Code of Civil Procedure can be demurred to by a co-defendant upon whom it is served.
    Appeal by the defendants, Nellie Y. Watson and others, from an interlocutory judgment of the Supreme Court in favor of the defendants, Silas P. Brown and others, entered in the office of the cleric of the'county of Broome on the 15th day of January, 1894, upon the decision of the court, rendered at the Broome Special Term, overruling their demurrer to the answer of the defendants, Silas P. Brown and others, and also from an order made at the Broome Special Term on the Yth day of November, 1893, and entered in said cleric’s office, overruling such demurrer.

      Babooeh, Sperry d& Van Cleve, for the appellants.

      A. D. Wales, for the respondents.
   JVIerwin, J.:

This action is brought for the partition of two parcels of real estate. In the complaint it is alleged that the plaintiff, as the devisee of Ruth Ann Blatchley Marvin, is the owner of an undivided one-third interest in the first parcel, and an undivided two-ninths interest in the second parcel. It is also alleged that Hortensius Blatchley at the time of his death in December, 188Y, was the owner of an undivided one-third interest in the first parcel, and an undivided five-ninths interest in the second parcel, and that the defendants Silas P. Brown and James E. Kent claim to own such interests by virtue of a deed from Gr. Ambrose Blatchley, the sole heir at law of said Hortensius, and that the defendants Nellie Y. Watson and Millie L. Watson also claim to be the owners of such interests as devisees under the will of said Hortensius, made on the 16th of June, 1885. The defendants Nellie Y. Watson and Millie L. Watson answered, admitting the interest of plaintiff as alleged in the complaint, and alleging that they, as devisees under the will of Hortensius Blatchley, were the owners of the interests which Hortensius held at the time of his death ; that such will was dated on or about the 16th of June, 1885, and was duly made and executed by said Hortensius, and was in existence at the time of his death, and had never been revoked, but that after his death and before it was proved or recorded, it-was lost or destroyed without their knowledge or consent, and could not be found by them. A coj>y was annexed to the answer. They denied that the defendants Brown and Kent had any interest in the premises. Judgment was demanded that it be adjudged that the defendants Brown and Kent had no interest in the real estate of which Hortensius Blatchley died seized, but that the defendants Nellie Y. Watson and'Millie L. Watson were the owners of the same.

The defendants Brown and Kent also answered, among other things denying the interest of plaintiff in the premises, denying that the defendants Watson had any interest therein, and alleging that Hortensius Blatchley died intestate, and that they as grantees of his only heir at law were the owners of a two-thirds interest in the first parcel, and a seven-ninths interest in the second parcel. In the ninth subdivision of this answer, for further answer to the complaint and the allegations thereof relating to the alleged interest of the Watsons, 'and as a bar against said Watsons, it was alleged that on or about the 20th of June, 1889, the said Nellie Y. and Millie L. Watson, by their guardian ad litem, commenced an action in the Supreme Court to obtain a judgment decreeing that the will of Hortensius Blatchley, under which the said Watsons claim, be established as the last will and testament of said Blatchley, as a will lost or destroyed subsequent to his death ; that in that action the said Brown and Kent were made parties defendant as well as the heir at law and administrator of said Blatchley; that Brown and Kent appeared and answered generally the allegations of the complaint; that the issues were duly referred to a referee to hear and determine, and were duly tried, and the referee found and decided that said will was revoked by said Blatcliley in his lifetime and was not in existence at his death, and that he died intestate, and that the defendants therein were entitled to judgment dismissing the complaint on the merits; that judgment was accordingly entered on the 20th of May, 1893, and a copy was attached.

The answer of Brown and Kent in the present case demanded judgment, among other things, that the defendants Watson be decreed to have no interest in the premises. This answer was duly served on the Watsons and on the plaintiff, and the answer of the Watsons was duly served on Brown and Kent and on the plaintiff. Thereupon the defendants Watson served a demurrer to the ninth defense or subdivision of the answer of Brown and Kent, the ground of demurrer being stated that the same is insufficient in law upon the face thereof.” This was brought to a hearing at Special Term, and a decision made that the demurrer will not lie by the demur-rants Watson to the answer of their co-defendants Brown and Kent; ” that the defendants James Brown and Ellen Kent are entitled to an interlocutory judgment overruling said demurrer, and that the said defendants Watson are permitted to answer or reply, under the rules and practice of this court.” From the interlocutory judgment entered thereon the present appeal is taken.

Was the Special Term correct in holding that the demurrer would not lie ? The claim of the respondents is that there is no law or authority which permits a demurrer in such a case. There seems to be no provision of the Code that authorizes it. By sections 488 and 492 a defendant is authorized to demur to the complaint or to one or more separate causes of action stated therein, and he may demur to the reply (§ 493) or to a separate traverse to, or avoidance of, a defense or counterclaim, contained in the reply. The plaintiff may demur to a counterclaim or a defense consisting of new matter, contained in the answer. (§ 494.) These provisions do not reach the present case. Section 521 treats of the determination of the ultimate rights of two or more defendants as between themselves, but no provision is made that one defendant may demur to the answer of the other.

The answer, which is demurred to in the present case, was served in pursuance of section 1543, which is as follows : The title or interest of the plaintiff in the property, as stated in the complaint, may be controverted by the answer. The title or interest of any defendant in the property, as stated in the complaint, may also be controverted by-his answer, or the answer of any other defendant; and the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant. A defendant, thus controverting the title or interest of a co-defendant, must comply with section five hundred and twenty-one of this act. __ The issues, joined as prescribed in this section, must be tried and determined in the action.” The provision of section 521, there referred to, required that a defendant who sought a determination between himself and a co-defendant must demand it in his answer, and must, at least twenty days before the trial, serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination, and personally, or as the court or judge may direct, upon defendants so to be affected who have not appeared in the action.

It will be observed that section 1543 étates the method in which issues between co-defendants in a partition case shall be joined, and that no demurrer is provided for. The fact that no time was provided for the service of the answer upon the co-defendant, except that it must be served twenty days before the trial, would seem to indicate that no further pleading was deemed necessary or appropriate. The issues so joined were to be tried and determined as issues in the action. (Hagerty v. Andrews, 94 N. Y. 198; Shannon v. Pickell, 2 N. Y. St. Repr. 160.)

By section 140 of the Code of Procedure all the forms of pleading theretofore existing were abolished, and thereafter the forms of pleading in civil actions in courts of record and the rules by which the sufficiency of the pleadings should be determined wei-e those prescribed by that act. Under this, as said by Judge G-bidlbt in De Witt v. Swift (3 How. Pr. 280), the demurrer could only be adopted in the particular cases prescribed by the act. The substance of the provision of the Code of Procedure was preserved in section 518 of the Code of Civil Procedure, which provides that, “This chapter prescribes the form of pleadings in an action, and the rules by which the sufficiency thereof is determined, except where special provision is otherwise made by law.” , (See 1 Rumsey’s Pr. 2-M.) In Marie v. Garrison (83 N. Y. 23) it is said by Andrews, J., that “ special demurrers, as 'known to tlie former practice, have no place in our present system of pleading. Tbe Code authorizes a demurrer for specific causes, and no pleading is demurrable unless it is subject to one or more of tbe objections specified in tbe section defining the-grounds of demurrer.”

We fail to find any authority for tbe interposition of tbe demurrer in tbe present case, and we are, therefore, of tbe opinion that the-Special Term properly held that it would not lie.

It may be that tbe respondent might have moved to have the demurrer stricken out as irregular (Doughty v. Devlin, 1 E. D. Smith, 629), but no question is here made on that subject and the appellant is not in a position to raise any. The demurrer was properly overruled and tbe judgment should be affirmed.

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

Interlocutory judgment affirmed, with costs, on the ground that the demurrer would not lie.


text:
    Andrew Outterson, Jr., Appellant, v. G. Henry P. Gould, Respondent.

      Floating logs on a river — when the owner of the logs is not liable for damages to a. dam caused thereby — contributory negligence of the owner of the dam.

    A person has the right to use to a reasonable extent a river (-which is navigable-for the purpose of floating logs) for floating logs thereon through another’s land; what is a reasonable use is a question of fact depending upon all the-circumstances of the case.
    Where logs are driven on a navigable river in an ordinary, prudent and skillful manner, the owner is not liable for damages which may result to the lands of riparian owners, and if the owner of a dam, injured by the floating of logs, has been guilty of negligence in the construction of his dam which has contributed to the injury, he cannot recover therefor.
    Appeal by the plaintiff, Andrew Outterson, Jr., from a judgment of tbe Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Lewis on tbe 2Jtb day of July, 1893, upon tbe report of a referee, dismissing tbe complaint upon the merits.

      8. 8. Trowbridge, for the appellant.

      II. W. Bentley, for the respondent.
   Mbrwin, J.:

The plaintiff and those whom he by assignment represents were, from 1881 to 1887, the owners of certain premises and water rights on Moose river in the town of Lyonsdale.. They kept and maintained thereon three dams for the purpose of accumulating and holding the water of the river for the use of a pulp mill. About three miles below on the same river the defendant, during that period and for many years previous, was the owner of a saw mill and was engaged in manufacturing lumber. In this business he was accustomed to obtain logs upon jxroperty above plaintiff’s mill and float them down the river. This action is brought to recover damages which the plaintiff claims his property has sustained by reason of logs so floated by defendant down the- river.

The claim of the plaintiff is that upon three occasions, one in or about January, 1884, one in the spring of 1885, and the other in November, 1886, the defendant’s logs floated down the river to such an extent that they injured or partially destroyed the plaintiff’s dams, thereby causing damage in the stoppage of the mill and the necessity for repairs.

It is not disputed that the dams of plaintiff were injured upon the occasions referred to, but the referee declines to find that the logs of the defendant on either occasion caused the injury. Upon each occasion the water in the river was high. Upon the first two occasions the ice was breaking up, and the referee attributes the injury upon those occasions to the ice and the high water. Upon the last occasion he attributes the injury to the improper construction of the plaintiff’s dams. Upon each occasion there were logs of the defendant in the river that had been left over from previous drives. Whether this was done to an unreasonable extent was a question of fact. The referee has found that the defendant used reasonable care and caution in driving his logs in the river past the plaintiff’s mill and was not guilty of negligence in that regard. The evidence authorized the referee to so find.

It was conceded that Moose river is a navigable stream for the purpose of floating logs and has been for many years, and that defendant liad tlie right to use the portion of the river through plaintiff’s lands for the purpose of navigation or floating of logs thereon. In the exercise of such right he had a right to the reasonable use of the river. (Angell on Watercourses, § 541a; Gould on Waters [2d ed.], § 90; Buchanan v. Grand River Log Co., 48 Mich. 364.) What is a reasonable use is a question of fact depending upon all the circumstances of the case. (Bullard v. Saratoga V. M. Co., 77 N. Y. 525; Pearson v. Rolfe, 76 Maine, 380.) The log owner is not, ordinarily, liable for any damages arising incidentally and without his fault from the reasonable use. (Witheral v. Booming Co., 68 Mich. 48; Carter v. Thurston, 58 N. Y. 104.) In Field v. The Apple River Log Driving Co. (67 Wis. 569) it was held that where logs are driven in a navigable river in an ordinary, prudent and skillful manner, the owner is not liable for damages which may result to the lands of riparian owners. So it has been held that if the owner of a dam that has been injured by the floating of logs has himself been guilty of negligence in the con* struction of his dam, and that has contributed to the injury, he cannot recover. (Miller v. Sherry, 65 Wis. 129.) The same principle was held in Harold v. Jones (86 Ala. 274).

The main question in the present case was whether there had been any unreasonable use by defendant of the river by reason of which the plaintiff’s property was damaged. This was a question of fact, and the referee has in effect determined it against the plaintiff. The evidence is, we think, sufficient to justify the conclusion of the referee.

The case of Sheldon v. Sherman (42 N. Y. 484) is cited by the •counsel for plaintiff as applicable here. We think it is not. That was not the case of an injury arising incidentally from the reasonable use of the stream without fault on the part of the defendant.

No sufficient reason for the reversal of the' judgment is apparent' and it should be affirmed.

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

Judgment; affirmed, with costs.


text:
    Head’s Iron Foundry, Respondent, v. Smith Sanders, Appellant.

      Territorial jurisdiction of a justice of the peace — statutes, hoto construed— Code of Civil Procedure, § 2869 — chapter 74 0/1893.
    The first four subdivisions of section 2869 of the Code of Civil Procedure, as amended by chapter 74 of the Laws of 1893, relating to special cases, operate to enlarge the jurisdiction of a justice of the peace, and are not dependent upon the limitations stated in the first or main clause of that section.
    Subdivision 5 thereof operates to diminish the jurisdiction of the justice as given in the main clause, and it is in form only applicable as an exception to the cases covered by the main clause and does not affect or limit the positive, independent and additional powers given in the other subdivisions.
    An action must be brought before a justice of the peace of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except that in any town adjoining an incorporated city no justice of such town has jurisdiction of any action brought by or against a resident of such adjoining city, unless at least one of the parties to the action is a resident óf such town.
    In the construction of a statute the intention of the Legislature is the main thing to be considered, and a construction which leads to a reasonable and consistent result is to be preferred, for it is not to be presumed that an absurdity or contradiction is intended. The probable object in the changing of the law is to be considered.
    Appeal by the defendant, Smith Sanders,' from a judgment of the County Court of Oneida county in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 21st day , of December, 1893, upon the decision of the court, affirming a judgment of a justice of the peace of the .town of Whitestown, county -of Oneida, with notice of an intention to bring up for review on such appeal the said judgment, the order of affirmance on which it was entered, the opinion of the County Court and the rulings made against the appellant from the commencement of the action.
    The action was brought before a justice of the peace of the town of Whitestown in the county of Oneida, and the summons was served on the defendant within that town on the 22d day, of April, 1‘893. The complaint was for goods sold and delivered and was verified. Upon the return day of the summons the defendant appeared specially and objected to the jurisdiction of the justice on. the ground that the'plaintiff was a resident of the city of Utica, whicli adjoined the town of Whitestown, and that the defendant was a resident of the town of St. Johnsville in Montgomery county. An affidavit was presented showing the residence of defendant as stated, and a certified copy of the articles of association of the plaintiff showing its principal business office' to be in the city of Utica. The objection was overruled and judgment was entered on the verified complaint.

      Frank B. Towmcm, for the appellant.

      L. FT. Southworth, for the respondent.
   Merwin, J.:

The controversy upon this appeal is over the construction of section 2869 of the Code of Civil Procedure, as amended by chapter 74 of the Laws of 1893. That section is as follows :

§ 2869. An action must be brought before á justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except in one of the following cases:

“ 1. Where the defendant has absconded from his residence, it may be brought before a justice of the town or city in which the defendant, or a portion of his property, is at the time of the commencement of the action.
“ 2. Where the plaintiff is not a resident of the county, or if there are two or more plaintiffs, where all are non-residents thereof, it may be brought before a justice of the town or city in which the plaintiff, or either of the plaintiffs, or his attorney, is at the time of the commencement of the action.
3. Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city in which he is at the time of the commencement of the action.
“4. Where it is specially prescribed by law that a particular action may be brought before a justice of the town, city, county or district where an offense was committed, or where property is found. X defendant designated in section two thousand eight hundred and severity-nine, section two thousand eight hundred and eighty or section two thousand eight hundred and eighty-one of this act is deemed for the purposes of this section a resident of the town-or city where the person, to whom a copy of the summons is delivered, resides.
“ 5. In any town adjoining an incorporated city, no justice of such town shall have jurisdiction of any action brought by or against a resident of such adjoining city, unless at least one of the parties to the action is a resident of such town.”

The amendment of 1893 consisted in the addition of subdivision 5. Before that was added, the justice in a case like the present had jurisdiction under subdivision 3. The question is whether subdivision 5 operates to limit the effect of subdivision 3. The defendant claims that it does, while the plaintiff claims that it only operates to limit the first clause or body of the section, and leaves unimpaired the other four subdivisions as granting additional jurisdiction in certain special cases.

The first four subdivisions operate to enlarge the jurisdiction o.f the justice. (Bennett v. Weaver, 50 Hun, 111.) They are not dependent upon the limitations stated in the first or main clause. They relate to special cases. On the other hand, subdivision 5 operates to diminish the jurisdiction of the justice as given in the main clause. It is, in form at least, only applicable as an exception to the cases covered by the main clause. Reading them together, as they should be, it is provided that an action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except that in any town adjoining an incorporated city no justice of such town shall have jurisdiction of any action brought by or against a resident of such adjoining city unless at least one of the parties to the action is a resident of such town. Read in this way, subdivision 5 does not affect or limit the positive, independent additional powers given in the other subdivisions.

It may be said that if the Legislature had intended that subdivision 5 should control the other subdivisions, it would have been so stated. It stands now only as an exception to the main clause and not as an exception to the other exceptions.

The object apparently of the amendment of 1893 was to prevent the oppressive exercise of the jurisdiction of justices of adjoining towns as against or in favor of residents of cities. In such cases there might, perhaps, exist improper practices, but that reason for th'e act would hardly be applicable to the matters covered by the other subdivisions. In fact its application to those subdivisions would lead to results somewhat absurd. By subdivision 2, a nonresident plaintiff could, before the amendment, bring his action anywhere in the county of defendant’s residence. (Bird v. Crane, 26 Hun, 531.) There is no reason for saying that he cannot bring it against a resident of a city in any town adjoining the city, and still the right be given him to bring his action in any other place in the county, whether near or distant. So, if the defendant is a non-resident, there is no reason for saying that he cannot be sued before any justice of an adjoining town, and still the right be given to sue him anywhere else in the county. So, of an absconding defendant under subdivision 1. Subdivision 4 refers to special cases under other provisions of law. It cannot be assumed that these were designed to be interfered with.

The intent of the Legislature is the main thing. (Peck v. Baldwin, 58 Hun, 310, and cases cited.) A construction that leads to a reasonable and consistent result is to be preferred. In Potter’s Dwarris, 208, it is said that where the meaning is ambiguous, where the clauses are confused and contradictory, and the words such as admit of two senses, the court will adopt that construction which will best carry the just and reasonable intention of the Legislature into effect.” It is not to be presumed that an absurdity or contration was intended. (People ex rel. West. F. I. Co. v. Davenport, 91 N. Y. 585; Smith on Stat. Const. § 518.) The probable object in a change of the law is to be considered.

By the first clause of the section under consideration a general rule is laid down as to the jurisdiction of a justice. Other cases beyond the scope of this general rule are provided for or referred to in the first four additional clauses. In the fifth clause or subdivision there is a limitation or exception to the general rule, and the more natural meaning of the whole section, constructed as it is, is that this exception applies only to the cases covered by the general rule, or to the cases that otherwise would be included in the general rule. This would accomplish the probable object of the amendment and would not lead to absurdities or inconsistencies, but would leave in full force the positive provisions of the other subdivisions. It should, therefore, I think, be said that the amendment of 1893 did not impair the force of subdivision 3. These views lead to the conclusion that the justice had jurisdiction, and that the judgment should, therefore, be affirmed.

Martin, J., concurred; Hardin, P. J., not voting.

Judgment affirmed, with costs.


author: "Williams, J.:

text:
    The People of the State of New York, Appellant, v. The Milk Exchange (Limited), Respondent.

      When the people of the State a/re entitled to a judgment dissolving a corporation — when it is error to take from, the jv/ry a question presented by the evidence.

    Where the purposes for which a corporation is conducted are unlawful, the People of the State are entitled to a judgment dissolving the same and adjudging its franchise to be forfeited.
    In an action brought by the People of the State to procure the dissolution of a corporation and the forfeiture of its franchise, where a. question is presented by the evidence whether the business conducted by such corporation was the purchasing and selling of milk, or whether the corporation was created to effect an illegal combination to prevent competition in the purchase and sale of milk, it is error to take such question from the jury.
    Appeal by the plaintiff, The People of the State of New York,, from a judgment of the Supreme Court in favor of the defendant,, entered in the office of the clerk of the county of Broome on the-17th day of May, 1893, upon the decision of the court rendered at. the Broome Circuit dismissing the plaintiff’s complaint.
    The action was brought to procure a dissolution of the defendant corporation and forfeiture of its franchise under the provisions of sections 1785 and 1798 of the Code of Civil Procedure.
    It was claimed at the trial and was urged on the appeal that the' defendant had suspended its ordinary and lawful business for at least one year and had failed to exercise its powers, and that it had violated provisions of law and abused its powers and had exercised privileges and franchises not conferred upon it by law, and that by reason thereof the People were entitled to the. relief asked for in the complaint.
    The object and nature of the'business for which the corporation was formed, as stated in its articles of incorporation, was “ the buying and selling of milk at wholesale and retail; the purchase of dairies of milk when deemed advisable, and the sale of the same to milk dealers.”
    The claim that the defendant suspended its business and failed to exercise its powers was based upon the assertion that defendant’s business, as carried on, was not the buying and selling of milk, within the terms of the articles of incorporation.
    The claim that the defendant had violated provisions of law and abused its powers was based upon the charge that defendant had engaged in a combination to restrain competition in the purchase and sale of milk, to fix the price thereof, and so control the market price.
    Evidence was given in behalf of the People upon these subjects, which the trial court, however, held insufficient to establish either of these allegations or claims.

      O. L. Andrus, for the appellant.

      Alfred Ely, for the respondent.
   "Williams, J.:

Evidence was given on the trial as to the nature of the business actually carried on by the defendant, as to whether it was the buying and selling of milk, or a broker business. Some portions of this evidence seem to indicate that the business was buying and selling, and other portions that it was merely a broker business. The conclusions to be drawn from the evidence were clearly for the jury and not for the court, but each party, having confidence that the court would draw the conclusion favorable to his side, conceded that the question was for the court and not for the jury. Whether there was, in the carrying on of the business, such a combination as the law condemns, to fix and control the price of milk and restrain competition in the purchase and sale of milk, was a question more or less complicated and mixed up with the question as to whether such business was a purchasing and selling of milk by the defendant or a broker business in milk. It seems to me the taking of this question as to an illegal combination from the jury was not justified by the evidence.

In a recent case in the Court of Appeals (People v. Sheldon et al., 139 N. Y. 251), where the retail coal dealers in the city of Lockport had entered into an agreement organizing the “ Lockport Coal Exchange,” for the purpose of their own protection in various ways, Andrews, Oh. J., says : The question here does not, we think, turn on the point whether the agreement * * * did, as matter of fact, result in injury to the public or to the community in Lockport. The question is, was the agreement, in view of what might have been done under it and the fact that it was an agreement the effect of which was to prevent competition among the coal dealers, one upon which the law affixes the brand of condemnation % It has hitherto been an accepted maxim in political economy that £ competition is the life of trade.’ The courts have acted upon and adopted this maxim in passing upon the validity of agreements, the design of which was to prevent competition in trade, and have held such agreements to be invalid..... The organization was a carefully devised scheme to prevent competition in the price of coal among the retail dealers, and the moral and material power of the combination afforded a reasonable guaranty that others would not engage in the business in Lock-port except in conformity with the rules of the exchange..... If agreements and combinations to prevent competition in prices are, or may Toe, hurtful to trade, the only sure remedy is to prohibit all agreements of that character. If the validity of such an agreement was made to depend upon actual proof of public prejudice or injury, it would be very difficult in any case to establish the invalidity, although the moral evidence might be very convincing.”

And in another case (Judd v. Harrington, 139 N. Y. 105), where there was an organization formed, known as a “ Sheep Brokers’ Association,” the same doctrine was laid down by Judge O’Brien.

Considerable evidence was given in this case as to the object and effect of this defendant corporation, the persons who organized it and became its stockholders and directors, the manner of the transaction of its business, and the fixing of the prices of milk, and the effect thereby produced upon the market price of milk generally. The stockholders have been mostly if not entirely persons interested as individuals in the milk trade, separate and apart from their interest as stockholders in the corporation. Indeed, the business of the corporation has not, in and of itself, been remunerative at all. No dividends have ever been paid. The assets of the corporation have not been increased since the organization of the corporation, but have rather steadily decreased. So that it is claimed the only real interest the stockholders have in the corporation is in its effect upon their business as individuals, by determining the prices to be paid and received for milk. Originally a by-law was enacted to the effect that the board of directors should have power to make and fix the market price at which milk should be purchased by stockholders, and should forfeit the stock of any stockholder who should purchase milk at any other price. This by-law was afterwards repealed, but the business of the corporation was continued, and it is claimed the effect produced by its fixing of prices for milk has been to establish the market price at which all milk has been sold in and about New York City, from whatever source it has, come. It is claimed, therefore, that the real object, for which the defendant corporation was organized and is being conducted, was and is not to make money in. the business carried on by it, but to control the market price of milk, and that an agreement between the persons who organized the corporation, and as stockholders and directors have carried on its business, to conduct it for the purpose stated, was and is an illegal combination, against public policy, and condemned by the law. Whether this claim' was and is well founded, under the evidence, was, at least, a question for the jury. The jury may have found the purpose for ■which the corporation was conducted to be unlawful, and, in that event, the plaintiff would clearly have been entitled to the relief demanded in the complaint.

The judgment for this error should be reversed and a new trial ordered, with costs to abide the event.'

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

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


author: Hardin, P. J.:

text:
    Anna Sullivan, Respondent, v. The City of Syracuse, Appellant.

      Injuries caused by a defective sidewalk — evidence — contributory negligence — burden of proof — sufficiency of notice — judge's charge.

    Upon the trial of an action brought to recover damages, alleged to have been sustained by reason of personal injuries received by the plaintiff on account of the alleged defective condition of a city street, the judge laid down the rule that the condition in which the walk was two or three days after the accident might be shown, if there was no change in its condition from that in which it was at the time of the accident, and that the jury should not consider such evidence unless it appeared that the walk was in the same condition at the time to which such testimony referred, two or three days after the time of the accident, as it was at the time of the accident.

      Held, that the trial judge committed no error.
    In such an action the burden of proof is upon the plaintiff to show that she was free from contributory negligence, but freedom from negligence may be established by proof of facts and circumstances warranting an inference to that effect.
    In an action brought against a city to recover damages for personal injuries sustained through the plaintiff’s having fallen upon one of its streets, the complaint alleged that such injuries were sustained on August fifth, and the notice given to the mayor of such city asserted that the accident was on the same day.
    Upon the trial the counsel for the defendant asked the court to charge the jury that “unless the jury find that the accident occurred on the 5th day of August, 1891, the plaintiff cannot recover under the notice served in this case.” The court refused to so charge, and an exception was taken. The court charged that it was not fatal to the plaintiff’s case if the accident occurred on the evening of the fourth, but that the question for the jury was whether substantially in the place and at the time in the complaint and notice specified the plaintiff had sustained the accident and the injury for which she claimed damages.

      Held, that such charge and refusal to charge were proper.
    Appeal by the defendant, The City of Syracuse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 6th day of February, 1893, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 2d day of March, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Gharles E. Ide, for the appellant.

      Hoyt dk Harrington, for the respondent.
   Hardin, P. J.:

Plaintiff’s action was brought to recover damages for personal injuries sustained by her when, on the 5th of August, 1891, in passing along Linden street, as she claims, she was thrown down by a loose or broken board in the sidewalk, receiving a severe blow across both her ankles, spraining both ankles, and receiving other bodily injury.

Plaintiff is a widow some fifty-five years of age, who supported herself by her own work; and she alleges that she was passing along the sidewalk in question carrying a basket of eggs to a customer of hers who lived on Harrison street, and that when near the school house gate on Linden street she stepped upon a loose or broken board in the sidewalk, which flew up and struck her across the ankles with a severe blow. One witness who was called testified that the boards were broken, and that he had seen some of them in the gutter. Considerable evidence was given as to the condition of the walk at the time the injuries were received and at times preceding the occasion of the injuries. It is insisted in behalf of the defendant that an error was committed in receiving evidence of the condition of the walk two or three days after the injuries occurred. When the attention of the trial judge was called to the objection made by the defendant, he observed: “The condition that the walk was in two or three days afterward may be given if there was no change in the condition from what it was at the time of the accident. If it is followed by evidence that it remained the same the evidence may be given. * * * qqie jury wp] not consider it unless it appears that the walk was in the same condition at this time, two or three days after, as it was at the time of the accident.” We think the trial judge committed no error in laying down the rule to be applied.

Corcoran v. The Village of Peekskill (108 N. Y. 151) is unlike the case before us. The evidence in that case which was held to be improper related to the fact that the defendant, after the accident, had built a fence around the area where the accident occurred.

(2) While the rule is as stated in Wiwirowski v. L. S. & M. S. R. R. Co. (124 N. Y. 425), that the burden is upon the plaintiff of showing that she was free from contributory negligence, the want of negligence may be established from facts and circumstances warranting an inference to that effect (Galvin v. The Mayor, 112 N. Y. 223; Chisholm v. The State of New York, 56 N. Y. St. Repr. 811); and the evidence 'in the ease was such that the court could not rule as a matter of law that the plaintiff was guilty of contributory negligence ; oh the contrary, it was his duty to submit that question, as he did, to the jury. (Gibbons v. The Village of Phœnix, 39 N. Y. St. Repr. 658; Goff v. The Village of Little Falls, 47 id. 729; Sherman v. The Village of Oneonta, 49 id. 271.)

(3) Plaintiff, in her complaint, alleges that the injuries were sustained on the 5th day of August, 1891; the notice given to the mayor of the defendant asserts that the accident was on the 5th day of August, 1891. The learned counsel for the defendant asked the court to charge the jury that unless the jury find that the accident occurred on the 5th day of August, 1891, the plaintiff cannot recover under the notice served in this case.” The court refused to so charge and an exception was taken. The court had already charged as follows : “ As I have already said, gentlemen, it is not fatal to her case if it was the evening of the 4th, but the question for your consideration is whether substantially at that place and substantially at the time she has given, whether she sustained the accident and the injury that she claims.” Ur. Jarvis was called as a witness, and he said in the course of his testimony : “ I think it was in August, 1891; I believe the 5th of August was the first time she called upon me.” The notice was served on the 21st' of September, 1891. The statute which requires notice provides that, the city shall not be liable for “damage resulting from any defect or improper condition in or upon any street or sidewalk unless written notice specifying the time, place and cause of such injury or damage shall be served on the mayor or city clerk within six months after the injury or damage was received.” (Chap. 449, Laws of 1888 ; chap. 572, Laws of 1886.)

In Paddock v. City of Syracuse (61 Hun, 8) a question was presented as to the sufficiency of a notice given under the statute, and it was held that the notice was too general as to the character of the defects complained of, and in the course of the opinion it was said : “ The city was entitled to the benefit of the statute, and a substantial compliance by plaintiff with its provisions was a condition precedent to the right of plaintiff to bring the action.”

"We think the construction of the statute which obtained at the trial of this case was not inconsistent with the rule laid down in the Paddodk case.

We are of the opinion that no error was committed during the progress of the trial, and the verdict of the jury should be sustained.

Martin and Merwin, JJ., concurred.

Judgment and order affirmed, with costs.