author: Pratt, J.:

text:
    The People of the State of New York, Respondent, v. Henry E. Kane and Another, Appellants.

      Trial under an indictment for injury to personal property — when the verdict of a jury will not be disturbed.

    Upon a trial under an indictment charging the accused with having unlawfully and willfully injured personal property, the evidence showed that the defendants destroyed the complainant’s boat, which at the time was on or near premises owned by one Edward Kane, the father of the defendant Henry E. Kane. The defendants claimed that the owner of the boat persisted in trespassing upon said premises, and that the destruction of the boat was necessary in order to protect the property.
    The only question submitted to the jury was as to whether the acts of the defendants were wanton and unnecessary to successfully protect and defend the possession of the land, to which the jury returned a verdict of guilty.

      Held, that their finding should not be disturbed.
    Appeal by the defendants, Henry E. Kane and another, from a judgment of the Court of Sessions of the county of Suffolk, rendered on the 6th day of June, 1893, on the verdict of a jury convicting the defendants of a misdemeanor upon an indictment for unlawfully and willfully injuring personal property.

      Lvoimgston /Smith, for the appellants.

      Benjamin S. Reme, Bisiriot Attorney, for the People, respondent.
   Pratt, J.:

This is an appeal from a conviction upon an indictment for unlawfully and willfully injuring personal property.

The trial was had in the Court of Sessions for Suffolk county on the 6th of June, 1893. The evidence showed that the defendants willfully destroyed the complainant’s boat which at the time was on or near defendants’ land.

The defendants claimed that the owner of the boat persisted in trespassing upon the premises of one Edward Kane, the father of Henry E. Kane, of which premises they had charge, with his boat, and that the destruction of the boat was necessary in order to protect his possession of his own property.

The charge of the judge was eminently fair and as favorable to the defendants as the case warranted.

The issue submitted to the jury, there being no dispute as to the acts of the defendants in destroying the boat, was whether the acts were necessary and proper to protect the property rights of Edward Kane.

The contention of the defendants that Edward Kane was the owner of the land where the boat was placed by the owner and that the boat was not rightfully there, was assumed by the court, so that substantially the only question for the jury was whether the acts of the defendants were wanton and unnecessary to protect and defend successfully their possession of the land.

The jury returned a verdict of guilty and found the value of the boat at twenty-eight dollars.

There are several exceptions to the rulings of the court, but upon examination we find no error sufficient to warrant a reversal of the judgment.

The conviction should be affirmed.

DykjiaN, J., concurred.

Conviction and judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    William M. Sherwood, Respondent, v. Tjark J. Houtman, Appellant.

      Contract to lay a stable floor — water tightness of the floor of the essence thereof— verdict contra/ry to the evidence.

    A contract made in writing between two persons required a stable floor, which. was to be erected by one of them, to be water tight. The ground floor was to 1 be used as a repository for carriages, and it was necessary that the floor above should be absolutely water tight.
    It was conclusively shown, upon the trial of an action brought to recover the unpaid balance alleged to be due on such contract, that the floor was not watertight.

      B.eld, that the plaintiff failed in the essential part of his contract, and that a verdict in his favor was contrary to the evidence.
    Appeal by tbe defendant, Tjark J. Houtman, from a judgment of tbe County Court of Kings county in favor of the plaintiff, entered in tbe office of the clerk of tbe county of Kings on tbe 26th day of September, 1892, upon tbe verdict of a jury for $200, and also from an order entered in said clerk’s office on tbe 21st day of September, 1892, denying tbe defendant’s motion for a new trial made upon the minutes.

      Thos. JE. Stewm% for tbe appellant.

      Arthv/r Hurst, for tbe respondent.
   Pratt, J.:

Tbe contract was in writing and required the stable floor to be-water tight. As tbe ground floor was to be used as a repository for carriages, it was clearly necessary that tbe floor above should be absolutely tight or tbe business could not be carried on. Both parties contracted upon that principle.

There is no substantial conflict of evidence as to tbe fact that tbe contract was not so completed. It is true that plaintiff and some of' bis witnesses testify in general terms that be completed tbe floor so as to be water tight. But that is, from tbe nature of the case, only matter of opinion. They so completed it that they exjtected it to be water tight. But tbe proof is conclusive that tbe floor was not water • tight, and tbe evidence sufficiently shows that tbe floor was built upon a wrong principle and required to be relaid before it could be tight.

The plaintiff failed in tbe essential part of Ms contract, and the verdict in his favor was contrary to the evidence.

The judgment and order denying a new trial must be reversed and a new trial granted, with costs to abide the event.

DyicmAN, J., concurred.

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


author: Peatt, J.:

text:
    Edson C. Jennings, Respondent, v. The D. G. Burton Company, Appellant.

      Action for injuries sustained, by the bite of a dog — sufficient defense thereto— . ricious dog.

    It is a sufficient defense to an action brought to recover damages alleged to have been sustained by the plaintiff from the bite of a dog, to show that the defendant was not the owner of the dog and had not harbored him for twenty days ■ prior to the injury.

      Semble, that it is not sufficient to prove a dog to be a vicious one, to show that ha was chained in a stable and at times had growled and barked at persons passing near him.
    Appeal by the defendant, the D. G. Burton Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of November, 1892, upon the verdict of a jury for $225, rendered at the Westchester Circuit, with notice of an intention to bring up for review on such appeal an order of the Supreme Court made on the 14th day of October, 1892, denying the defendant’s motion for a new trial made upon the minutes.

      Robert MoO. Robinson, for the appellant.

      Demid Swits, for the respondent.
   Peatt, J.:

The defendant appeals from a judgment, entered upon the verdict of a jury, and from an order denying a motion for a new trial.

The action was brought to recover damages sustained by plaintiff, an employee of the defendant, from the bite of a dog alleged to have been kept by the defendant.

The evidence shows that, at the time of the injury, one James D. Burton occupied a stable which the defendant had leased to him on February 16, 1892; that said stable was situated some 300 feet distant from the engine room where plaintiff was employed at the time of the injury, and that said Burton owned and kept a dog in said stable, which attacked and bit the plaintiff on the morning of February 26, 1892. It was further shown that the defendant was incorporated on February 1, 1892, and became the owner of said stable and the premises where plaintiff was employed on February 16, 1892. There is no evidence in the case, so far as we have been able to discover, that the defendant owned the dog, or had it in possession; on the contrary, it was clearly proven that the dog belonged to one James D. Burton and was kept by him at his stable. Nor is there any evidence to hold the defendant, as a harborer of the dog for the space of twenty days previous to the injury, under 1 Bevised Statutes, 706, section 20. That could not have been found for the reason that the defendant did not become the owner of the premises until February 16, 1892, only ten days before the injury. On this state of facts, even conceding that the dog was a vicious one, we do not see how plaintiff can recover in this action. But we do not find sufficient evidence that the dog really was a vicious one. He had never before bitten any one or, so far as we can find in the evidence, done anything from which the defendant, even if it owned the dog, could be presumed to have notice that the dog was a vicious one. He was chained in Burton’s stable and, at times, had growled and barked at persons passing near him. Such actions did not make the dog a vicious one. But it is unnecessary to discuss this branch of the case. It is sufficient for the purposes of this appeal that it was shown, on the trial, that the defendant was not the owner of the dog, and had not harbored him for the twenty days required by the statute to make the defendant liable for any injury the dog might do.

The judgment and order denying new trial should be reversed and a new trial granted, with costs to abide the event.

Cullen, J., concurred.

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


text:
    Thomas Atwood, Respondent, v. Edward C. Beirne, Appellant.

      False imprisonment — theft, probable cause — malicious cha/rge — insufficient termination of a proceeding.

    Upon the trial of an action brought to recover damages for false imprisonment, the defendant testified that ten dollars had been stolen from his office and that no one was there when the same was taken but the plaintiff and his wife. The plaintiff denied having taken the money, and the question whether a theft had been committed was left to the jury, with the instruction that if there had been a theft, probable cause was shown.

      Held, that the proper course was taken.
    In such an action it is proper for the court to charge that a verdict for the plaintiff cannot be found unless no theft has been committed, and the charge has been made maliciously.
    Where two cross complaints, for assault and battery and one complaint for larceny, are made by two persons respectively, and it is afterwards arranged by counsel that the complainants shall respectively be absent from court on the days to which the proceedings have been adjourned, and each complaint falls for want of prosecution, there has not been such a termination of the prosecution as will sustain an action by one of such persons to recover damages for false imprisonment.
    Appeal by tbe defendant, Edward C. Beirne, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in the office of tbe clerk of tbe county of Orange on tbe 8th day of July, 1893, upon tbe verdict of a jury for $500, rendered at tbe Orange County Circuit, and also from an order entered in said county clerk’s office on tbe 11th day of July, 1893, denying tbe defendant’s motion for a new trial made on tbe minutes.
    Tbe complaint contained tbe following allegations:

      “ The plaintiff further complaining alleges tbe charge made by the defendant, and bis arrest and imprisonment, was made and caused without any probable cause to suspect plaintiff of either stealing or attempting to steal tbe property thereinbefore mentioned, and that said arrest and detention of said plaintiff was unjustifiable and malicious.

      “ That plaintiff herein, by reason of tbe unjustifiable and malicious action of tbe defendant aforesaid, suffered great mental agony and physical discomfort, and demands judgment against said defendant for $3,000, besides tbe costs and disbursements of this action.”

      John W, Lyon, for tbe appellant.

      Wilton Bonnet, for tbe respondent.
   Peatt, J.:

Appellant urges that tbe court, below erred in refusing to dismiss the complaint for failure to prove want of probable cause.

Tbe defendant testified that ten dollars bad been stolen from his office, and that no one was present at the office when tbe money was taken but tbe plaintiff and bis wife.-

Tbe court said that if a theft bad been in fact committed, then there was probable cause for tbe prosecution. We think that was as far as tbe trial judge could go in that direction.

Plaintiff denied having taken tbe money, and tbe question whether a theft bad been committed was practically left to tbe jury, with tbe instruction that if there bad in fact been a theft probable cause was shown. We think this was the proper course.

Nor was any error committed in the charge as to smart money. Under the charge the jury were not allowed to find a verdict for plaintiff, unless they found that no theft had been committed, and that the charge was made maliciously. Where a complaint is made under such circumstances smart money might well be given.

It is also urged that the prosecution was not so terminated in plaintiff’s favor as to afford the proper foundation for this action, and this objection appears to be well founded.

There were two cross complaints of assault and battery, and one complaint for larceny. One of the assault cases was tried three times before a verdict was reached, and by that time the parties, their counsel and the justice were all tired of the matter, and were equally eager to end the proceedings.

It was arranged by counsel that the complainants should respectively be absent from court upon the days to which the proceedings were adjourned, and each complaint thus fell for want of prosecution. That disposition of the matter was judicious and creditable to all concerned, but it was not such a termination of the prosecution as would sustain an action. In principle it was a compromise or an abandonment of the proceeding by mutual consent, and no real determination has been had. On that ground the plaintiff’s case fails. There must be a reversal of the judgment and a new trial, costs to abide the event.

DyKMAN, J., concurred.

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


text:
    Michael Fines, Respondent, v. Charles Sillery and Another, Appellants.

      Establishment of the plaintiff’s case by the mvss-examination of the defendant? witnesses.

    Upon the trial of an action, when the plaintiff rested his case, it was a close question whether or not the testimony introduced hy him was sufficient to sustain a judgment in his favor, hut the trial court denied a motion to dismiss the plaintiffs complaint, and, on the cross-examination of the defendants’ witnesses, facts were brought out which established the plaintiff’s cause of action.

      Held, that a judgment in favor of the plaintiff should be affirmed.
    Appeal by the defendants, Charles Sillery and another, from a judgment of the City Cojirt of Mount Yernon in favor of the plaintiff, entered in the office of the clerk of the City Court of Mount Yernon on the 30th day of March, 1893, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 22d day of' March, 1893, denying the defendants’ motion to set aside the verdict and for a new trial.
    Upon the trial, after the plaintiff rested his case, the defendants moved to dismiss the complaint, which motion was denied.

      Wm. S. Cogswell and Louis Mattha/uer, for the appellants.

      Wm. J. Marshall, for the respondent.
   Peatt, J.:

Appellants urge that the testimony introduced by plaintiff is insufficient to sustain the judgment. It must be admitted that when the plaintiff rested the case it was a close question. But the trial judge wisely “heard the other side,” and the cross-examination brought out facts which established plaintiff’s cause of action. It thus appeared that the Italian whose blunder caused the injury, was, on that day, employed at this work for the first time; that defendants made no inquiries about him; knew nothing of his fitness, having merely notified the “patron” how many laborers were needed; and the foreman, upon whose direction only the stone should have been lowered, testified that he gave no such order. After this evidence, there is no serious question of defendants’ liability.

Judgment and order denying new trial affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment and order denying new trial, affirmed, with costs.


author: Dykman, J.:

text:
    Frank P. Ward, Appellant, v. Charles Isbill et al., Respondents.

      Precedence of a deed over a mortgage given before and recorded after it — ps'esumption of good faith — subsequent grantee with notice — recital that premises are conveyed subject to mortgages.

    Both a deed and a mortgage are conveyances within the Recording Act, and for a deed to secure precedence and priority over a prior mortgage, subsequently recorded, it must appear that the deed was for a valuable consideration, taken in good faith and without notice of the existence of the mortgage.
    A deed which expresses a valuable consideration and acknowledges the payment thereof by the grantee therein named is prima facie evidence that the grantee was a purchaser in good faith within the Recording Act; no proof of actual payment is necessary and the presumption of good faith is sufficient for the security and protection of such grantee, and those claiming through him, until it is overcome by proof.
    Where a purchaser of property is protected by the Recording Act against a mortgage given before and recorded subsequently to his deed, his grantees are entitled to such protection notwithstanding the fact that they purchased from him with notice of the mortgage.
    A recital in a deed that the premises conveyed thereby were subject to mortgages and taxes is not sufficient to give notice to the grantee therein named of the existence of an unrecorded mortgage, where other mortgages against the property were found by him.
    Appeal by the plaintiff, Frank P. Ward, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 27th day of June, 1893, upon a decision of the court, rendered after a trial at the Kings County Special Term, adjudging the defendants’ interest in certain premises to be superior to the plaintiff’s mortgage thereon, and-dismissing the plaintiff’s complaint upon the merits, and for costs.

      Archibald G. Shenstone, for the appellant.

      Albert G. McDonald, for Charles Isbill and others, respondents.

      Edwa/rd J. McCrossm and A. P. Bates, for respondent McCrossin.
   Dykman, J.:

This is an appeal by the plaintiff from a judgment rendered against him in an action for the foreclosure of a mortgage upon real property.

The material facts are these: On the 29th day of January, 1875, J ames Carson Brevoort made his promissory note, in writing, for $5,520.87, payable thirty days after demand to Wingfield Gr. Burton. Such demand of payment was made on the same day, and the note became due on the 3d day of March, 1875.

On the 17th day of May, 1877, the maker of the note, Brevoort, made and executed to the payee, Burton, a mortgage upon real property as collateral security for the payment of the note, and the mortgage recites the fact that it was so given.

The mortgage was recorded in the office of the register of Kings' county on the 6th day of May, 1878, nearly one year after its execution and delivery.

This action was commenced for the foreclosure of that mortgage.

James Carson Brevoort sold and conveyed the premises described in the mortgage to Henry W. Brevoort by deed of conveyance bearing the date of April 21, 1878, and recorded in the office of the register of Kings county on the 25th day of April, 1878, eleven days before the recording of the mortgage in suit.

The deed conveyed other property and stated that it was subject to mortgages and taxes, but no reference was made to this mortgage.

The consideration for the conveyance was $18,000, which was expressed therein. «

On the 10th day of December, 1888, Henry W. Brevoort sold and conveyed the premises in question to the defendant Joanna E. McCrossin, by deed of conveyance bearing date on that day, and recorded in the office of the register of Kings county on the 13th day of December, 1888. The consideration named in the deed was $350, bnt the grantee paid over $1,900 for taxes. That deed made no reference to this mortgage, and the other defendants derive their title and their liens from the grantee therein.

There was no evidence to show that Henry W. Brevoort had knowledge or notice of the mortgage, and none to show that he had not. The mortgage was assigned to the plaintiff.

The question for determination is whether Henry "W. Brevoort took the title to the premises free from the lien of the unrecorded mortgage, or, in other words, whether the mortgage was void as against him.

The statutory provision (1 R. S. 756, § 1) is that “ every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.”

Both the deed and the mortgage are conveyances within the Recording Act, and to secure precedence and priority over the mortgage it must appear that the deéd was for a valuable consideration, taken in good faith and recorded first. Two of these facts are beyond dispute. The deed was for a valuable consideration and it was first recorded.

It is upon the question of good faith that the parties differ; as we have said, there was no proof that Henry W. Brevoort had or had not notice of the mortgage.

The theory of the plaintiff is that the burden of proving want of notice rested upon the defendants, while they insist that the presumption of law is in their favor and sufficient for their protection until overcome by testimony.

So the final determination of this appeal depends upon the location of the burden of proof.

The deed to Henry W. Brevoort expressed a valuable consideration and acknowledged the payment of the same by him, and that was prima facie evidence that he was a purchaser in good faith within the Recording Act. (Wood v. Chapin, 13 N. Y. 509 ; Lacustrine Fer. Co. v. L. G. & Fer. Co., 82 id. 477.)

Where a consideration is so expressed no proof of actual payment is requisite. (Jackson v. Alexander, 3 Johns. 484; Wood v. Chapin, supra)

The presumption of good faith arising from the payment of a valuable consideration by the grantor of defendant is sufficient for their security and protection until it is overcome by proof.

They could, therefore, rely upon such presumption without the production of proof. The burden, therefore, rested upon the plaintiff to rebut the presumption, and as he made no effort in that direction the demands of the Eecording Act are all satisfied and the deed takes precedence and priority over the mortgage.

The fact that the defendants are chargeable with constructive notice of the plaintiff’s mortgage is immaterial and does not aid the plaintiff, because, as we have concluded, their grantor was protected by the Eecording Act against the unrecorded mortgage of the plaintiff. That being so the defendants, as purchasers from him, are entitled to such protection notwithstanding their purchase with notice. (Wood v. Chapin, supra; Griffith v. Griffith, 9 Paige, 315.)

The recitation in the deed, that the premises were subject to mortgages and taxes, was sufficient to give notice to the purchaser of the mortgages which were subsequently found and they were sufficient to answer the reference in the conveyance. The clause cannot have the effect of notice of the mortgage in suit, and does not, therefore, destroy the presumption of good faith to which we have alluded. ■

The judgment should, therefore, be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


author: Dvkman, J.:

text:
    Louise B. Lynch, Respondent, v. Albrecht J. Lerche, Appellant.

      An attorney’s claim for professional seo'vices — agreement to divide the proceeds of legal business — evidence to sustain a verdict.

    In an action brought by one holding an assignment of an attorney’s claim arising out of professional services alleged to have been rendered by such attorney to the defendant, the evidence showed that the defendant, as well as the plaintiff’s assignor, was a lawyer; that their offices were together and that they took some business together under an agreement to divide the proceeds, and the defendant testified that all the services performed by the plaintiff’s assignor were rendered under that agreement.
    The jury rendered a verdict for the plaintiff.

      JZeld, that the defendant’s claim, that all the services were performed under the agreement to divide the proceeds, was most natural, and that no reason was disclosed for any different arrangement in respect to the services in suit;
    That even if the verdict was conclusive on that question, it was not conclusive on the question of the value of the services, since the testimony in respect thereto was entirely insufficient to sustain the verdict.
    Appeal by tbe defendant, Albrecht J. Lerche, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Queens county on the 7th day of January, 1898, upon the verdict of a jury rendered at the Queens County Circuit, and also from an order made on the 4th day of January, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      B. W. Downing, for the appellant.

      L. B. Treadwell, for the respondent.
   Dvkman, J.:

This is an appeal from a judgment and an order denying a motion for a new trial upon the minutes.

The action is brought to recover upon a claim for services rendered by Leman B. Treadwell, as a lawyer, which was assigned to the plaintiff, Louise B. Lynch.

The claim was for $1,870 and the jury rendered a verdict in favor of the plaintiff for $1,000.

Treadwell and the defendant are both lawyers, and Treadwell is the attorney for the plaintiff in this action.

Treadwell was the only witness for the plaintiff, except a boy whose testimony was immaterial, and the defendant was a witness in his own behalf and called no other.

The testimony in support of the claim was very unsatisfactory* and in our view, it was overcome by the testimony of the defendant and the facts and circumstances developed during the trial.

As we have said, the defendant and Treadwell were lawyers. Then’ offices were together, substantially in the same room. Tread-well admits that they took some business together under an agreement to divide the proceeds. Lerche says all the services performed by Treadwell were under that agreement, and that is most natural. No reason was disclosed for any different arrangement in respect to services involved in this action. If, however, it can be said that the jury has found in favor of the plaintiff, and that we are concluded by the verdict upon the main question, the same cannot be said respecting the value of the services, for in respect to such valuation the testimony is entirely insufficient to sustain the verdict.

In the first place the extent of thfe actual service is very indefinite, and in many eases the charges are excessive and out of proportion to the labor.

In relation to the proof of the value of the services the detailed testimony of Treadwell consisted of statements of the charges he had made, and he then, near the close of his examination, estimated the value of the entire services rendered at $1,975.

That amount includes a charge of $1,200 in the case of Blind Tom, and Lerehe says they received $210 in that case from the committee under an agreement of which Treadwell had knowledge, and Tread-well received one-half of that sum under the general agreement between them; Treadwell does not deny knowledge of the agreement with the committee to perform the legal services for $210, nor the receipt of one-half of that sum. Upon that point, then, the testimony of Lerehe stood uncontradicted and took the $1,200 charge out of the case. Yet, that charge went to the jury and some portion of it must have been included in the verdict as it could not have reached the sum of $1,000 independent of that amount. So it appears very plainly that the verdict is excessive and the testimony is entirely insufficient for its support.

The judgment and order denying the motion for a new trial should be reversed and a new tijial granted, with costs to abide the event.

Barnard, P. J., concurred.

Judgment and order denying new trial reversed, with costs.


author: DyKMAN, J.:

text:
    James Bigler, Respondent, v. Joseph W. Duryee, Appellant.

      Mcamination of a pm'ty before trial, after issue joined — purpose of — •requisites of the affidavit.

    The examinations of parties before trial may be allowed with liberality and executed comprehensively, but cannot be permitted for the purposes of exploration or discovery, or to furnish a means for the acquisition of knowledge respecting the testimony to be encountered upon the trial of the action.
    Before an order can properly be made for the examination of a party before trial after issue joined, it must appear that his testimony is material and necessary for the prosecution or defense of the action, and in such an action as one brought upon a promissory note, against the maker, it must be made to appear by affidavit that special circumstances exist which render it proper that the party should be examined.
    Appeal by the defendant, Josepli W. Duryee, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Orange county on the 24th day of June, 1893, denying the defendant’s motion to vacate an order theretofore made by a justice of the Supreme Court, on the application of the plaintiff, for the examination of the defendant before trial, pursuant to the provisions of article 1 of title III of chapter IX of the Code of Civil Procedure.
    The affidavit upon which the order for the defendant’s examination was granted was as follows:

      “ James Biglee, of the city of Newburgh, county of Orange, and State of New York,' being duly sworn, says: That he is the plaintiff in the above-entitled action.

      “ That said action was commenced on the day of March, 1893, by the above-named plaintiff, this deponent, who resides at the city of Newburgh, against Joseph W. Duryee, the above-named defendant, who resides at the city of New York, and said action is now pending in the Supreme Court, and the place of trial is the county of Orange.
    “ That said defendant has appeared and answered by Messrs. Nor-wood & Coggeshall as his attorneys, whose office address is No. 140 Nassau street, New York city, and that the plaintiff, this deponent, has appeared by E. A. Brewster as his attorney, whose office address is No. 45 Third street, Newburgh, New York.

      “That said action is brought to recover the balance due on a promissory note as more fully appears by the complaint, a copy of which is annexed hereto and marked Exhibit ‘ A ’ and made a part of this affidavit.
    “ That the nature of the defense of this action fully appears by the answer, a copy of which is annexed hereto and marked Exhibit ‘ B ’ and made a part of this affidavit.
    “ That the testimony of the said defendant, who resides in the city of New York, in the county of New York, is material and necessary for the plaintiff, and for the prosecution by the plaintiff of the said action.
    “ That the following facts and circumstances render the examination of said defendant material and necessary :
    “ That the action is brought upon a promissory note for $11,400, signed with defendant’s name, dated July 1st, 1876, and payable on demand as appears more fully supra.

    “ That defendant does not deny the making and delivery of the note. ’
    “ That payments were made to plaintiff on account of said note, by or on behalf of defendant at different times; that the last of said payments was made within six years next before the commencement of this action.

      “ That said payments were stated to plaintiff by or on behalf of defendant to be made on account of said note, and the indebtedness represented thereby.
    “ That it does not appear from the discharge in bankruptcy set forth in defendant’s answer that said note or indebtedness represented thereby was included therein.

      “ That the payments alleged by plaintiff to have been made on account of said note, and as to which defendant’s examination is sought, were made by an exchange through the mail of notes between the plaintiff and defendant, the difference between the notes when paid being applied by plaintiff on account of this indebtedness, pursuant to the letters accompanying the notes; that the notes purporting to be signed by defendant were forwarded by mail to plaintiff in letters not signed by defendant, but signed by one Bloomer, stating that he signed them on behalf of defendant; that plaintiff does not know whether he acted for defendant or not; that be does not know where said Bloomer now is, nor can be found, nor what his authority was; that the notes claimed by the plaintiff to be those of the defendant given in exchange for plaintiff’s notes are no longer in the possession of plaintiff, nor does plaintiff know where they are; that unless plaintiff proves these payments, the note in suit is barred j>y the Statute of Limitations, which is pleaded in the answer; that if plaintiff waits until the trial of the case, he cannot prove his case, because he cannot procure the attendance of said Bloomer or said defendant at that time, and without their testimony he cannot prove the agency of said Bloomer or the execution and delivery of said notes.
    “ That even if plaintiff could find said Bloomer, he might, in the trial, deny that he was authorized to sign these letters and thus defeat plaintiff, and defendant, by denying the authority of said Bloomer, by leaving the jurisdiction at the time of trial, could prevent plaintiff from proving this affirmative part of the case, for under the plea of the statute he need not be present at the trial in order to succeed. That the above facts sought to be proved by the examination of defendant are not known to plaintiff; that plaintiff makes this application in good faith, and cannot prove said facts except by the testimony of defendant.
    “That said defendant resides at No. 39 West 97th street, in the city of New-York, and regularly transacts his business in the city of New York.
    “ That no previous application has been made herein for an order for the examination of said defendant.
    “ That said examination is to be had for using the testimony as evidence upon the trial of said action.”

      Charles B. Reid, for the appellant.

      Eugene D. Hawkvns and E. A. Brewster, for the respondent.
   DyKMAN, J.:

This is an appeal from an order denying a motion made by the defendant to vacate an order for his examination as a party before trial after issue joined.

Although the affidavit upon which the order for the examination was based is not named as one of the papers upon which the motion to vacate would be made, yet tbe insufficiency of that affidavit is now set up as the reason why the motion to vacate should be granted.

Examinations of parties before trial have come to be common now and very useful, and according to the expression of the Court of Appeals in the case of Herbage v. City of Utica (109 N. Y. 82), they may be allowed with liberality and executed comprehensively.

Reasonable rules have been prescribed by the Code and the court rule, which must receive compliance upon applications for these orders. They cannot issue for the purposes of exploration or discovery. Under our system of practice there is no means provided for the acquisition of knowledge respecting the testimony to be encountered upon the trial of an action.

Before an order can properly be made for the examination of a party before trial after issue joined, it must appear that his testimony is material and necessary for the prosecution or defense of such action. In a case like this it must be made to appear by affidavit that special circumstances exist which render it proper that the party should be examined.

The application must be honest and meritorious and free from ulterior designs.

The affidavit upon which this order was granted states that the testimony of the defendant is material and necessary for the plaintiff and for the prosecution by him of this action.

Then the facts and circumstances which render the examination necessary are fully stated and they are entirely satisfactory. The affidavit is not only a full compliance with the requirements of the Code and the rule, but the facts stated satisfy us that the examination of the defendant is necessary to secure the due administration of justice, and that the testimony will be necessary upon the trial of the action.

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

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

Order denying motion to vacate order affirmed, with ten dollars costs and disbursements.


author: Barnard, P. J.: Pratt, J.:

text:
    Mary A. Morris, Respondent, v. The New York, Ontario and Western Railway Company, Appellant.

      Railroad passenger — action for damages — evidence justifying a verdict based upon the plaintiff’s being a regula/r passenger — professional, communications — excessive verdict.

    In an action brought to recover the damages sustained by the plaintiff in jumping from the cars of the defendant, a railroad company, in order to avoid a collision, it was shown, upon the trial, that the plaintiff’s brother was a brakeman on the train upon which she was traveling; that she had no pass, but had money to pay her fare, but that no one asked her for it. The plaintiff testified that there was no arrangement whatever that she was to travel on a pass; that she purchased no ticket, and'referred the conductor to her brother, the brakeman, but she was not permitted to testify as to a previous conversation with her brother on this subject.
    Held, that the proof was not sufficient to justify the reversal of the verdict of a jury in favor of the plaintiff, based upon the fact that she had no pass and was a regular passenger.
    Where a person is called in professionally as consulting physician, what is said in consultation in the presence of the patient is inadmissible in evidence. The fact that the physicians in attendance did not agree upon the patient’s disease does not permit the confidential statements between physician and patient to be disclosed.
    What evidence justifies a jury in rendering a verdict for $3,500 damages, considered.
    Appeal by tbe defendant, the New York, Ontario and Western Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 6th day of July, 1893, upon the verdict of a jury for $3,500, rendered at the Orange County Circuit, and also from an order entered in said clerk’s office on the 20tli day of June, 1893, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

      William Vcmmiee, for the appellant.

      W. F. O’Neill, for the respondent.
   Barnard, P. J.:

There is no uncertainty in the proof as to the defendant’s negligence causing the accident which injured the plaintiff, nor is there any doubt as to the fact that the plaintiff was free from all negligence which contributed to her injury. She was a passenger on the. defendant’s train, and saAv an approaching engine of the defendant’s' coming upon the same track. She jumped from the car just before the crash of the collision and Avas hurt in her fall. The extent of the injury is disputed. The plaintiff states that she is thirty-three years of age; that before the accident she Avas a healthy, rugged woman, the mother of tAvo children, one born after the aceident. The injury was received the 10th of November, 1891, and up to the trial in June, 1893, she had been unable to do any work. In this statement of her injury the plaintiff is supported by her husband. Proof Avas given tending to show a permanent injury of the spine, caused by the concussion from her fall, and that she was growing worse. There -was proof given by the defendant tending to show that the plaintiff, at and soon after the accident, said she Avas not hurt, and by those who saw her get off from the cars, that she did not fall, but landed upon her feet and ran across to a store. Proof was also given by the defendant tending to show that the plaintiff was not in good health before the aceident.

The defendant sought to prove that the plaintiff was riding on a. pass. Her brother was a brakeman on the train upon which plaintiff was traveling. She had no pass ; had money to pay her fare,, but no one asked her for it. She says that there Avas no arrangement whatever that she was to travel on a pass. She purchased no* ticket, and referred the conductor to her brother George (the brakeman), and when she attempted to testify as to what her brother said about it on the day before, she was stopped. This proof is not sufficient to reverse a verdict of the jury based upon the fact that she had no pass and was a regular passenger.

The testimony of Hr. De Kay was properly rejected. He was called in professionally as consulting physician. What either of the physicians in attendance said in consultation in the presence of the plaintiff is inadmissible. (Renihan v. Dennin, 103 N. Y. 573.)

They did not agree upon the disease, and this fact will not permit, the confidential relation betAveen physician and patient to be rendered nugatory. The defendant asked the regular physician, Payne,, if Dr. DeKay did not say the plaintiff’s injury was intercostal, neuralgia, and lie said lie did. No case, for wliat is known as impeaching evidence, is made. The damages, $3,500, are not •excessive, if the jury believed the testimony of the plaintiff and her husband.

The judgment and order denying a new trial should be affirmed, with costs.

Dykman, J., concurred.

Pratt, J.:

Defendant concedes its negligence, and does not claim that plaintiff was guilty of contributory negligence.

The questions of fact ivere, whether the plaintiff took passage intending to pay her fare, and whether she was injured and to what extent. These were sharply disputed, and the contention of each side was sustained by an abundance of witnesses.

The case is pre-eminently one to be decided by the jury. There is no such preponderance of evidence as to call for the interference of the court. There is no question of law that requires discussion.

The judgment and order denying new trial must be affirmed, with costs.

Judgment and order denying new trial affirmed, with costs.


author: Barnard, P. J.: Pbatt, J.:

text:
    Effie Redner, Respondent, v. The Lehigh and Hudson River Railway Company, Appellant.

      Bail/road passenger — safe place to enter a train — negligence.
    A railway company is obliged to provide a safe place at which its passengers can embark upon or depart from its trains at all points at which, it receives or discharges passengers.
    A passageway of boards some three or four inches in width extending from the waiting room to the platform beside which the train stands, is not such a safe place. A person going along such passageway could have no reasonable anticipation that the person in front of her, going the same way, would, without warning, suddenly turn, and thereby accidentally throw her therefrom.
    Appeal by the defendant, the Lehigh and Hudson River Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in tlie office of the clerk of the county of Orange on the 23d day of June, 1893, upon the verdict of a jury for $3,500, rendered at the Orange County Circuit, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 26th day of June, 1893, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

      John J. Beattie, for the appellant.

      Jolm M. Gardner, for the respondent.
   Barnard, P. J.:

The plaintiff was at the Hudson Junction station waiting for a train of the defendant by which she was to be carried as a passenger to Warwick in Orange county. The station was a small one, but it was one for which the defendant sometimes sold tickets, and at which it permitted passengers to get upon the train. The train was reached by passengers, who waited for the train at the room provided for them, by a very narrow passageway of boards, only some three or four inches in width leading to the platform alongside of which the defendant’s cars stood. The station was common to other roads besides the defendant’s road, and while the plaintiff was proceeding to the defendant’s train some person, other than an employee of defendant, suddenly turned and threw the plaintiff off the narrow step of board and severely injured her. The effect was not designed by the person who threw the plaintiff down, but flie passageway was so narrow that the mere unintentional turning of a person was likely to have that effect, and it did so in this case. The obligation of the defendant was to provide a safe place at which the passenger could embark upon and depart from the train at such points as the company received or discharged passengers. (Hulbert v. N. Y. C. R. R., 40 N. Y. 145.)

The questions of fact which were disputed have been found in favor of the plaintiff. The plaintiff was entirely free from any lack of care and caution which, as matter of law, could be deemed contributory negligence on her part. She was proceeding in the way that the defendant provided, and could have no reasonable anticipation that a person in front of her, going the same way, would suddenly aud without warning turn and throw her from this narrow passage.

The judgment and order denying a new trial should, therefore, be affirmed, with costs.

Pbatt, J.:

The court correctly held that if defendant used the platform for the reception and discharge of passengers it was bound to take reasonable care to see that it was reasonably safe.

It cannot properly be said that such jiroof does not meet the issue. The allegation of the complaint, that “ plaintiff was on the platform of defendant,” does not require for its support proof that the legal title was in defendant.

It is sufficient if it used it in its passenger business. That was abundantly shown.

We think the plaintiff fairly proved her case in other respects. She was corroborated by other witnesses and credited by the jui7-

The verdict was moderate in amount and was satisfactory to the Circuit judge.

The judgment and order denying new trial should be affirmed, with costs.

Judgment and order denying new trial affirmed, with costs.


author: Barnard, P. J.:

text:
    John New and Another, Respondents, v. Howard Carroll, Appellant, Impleaded, etc.

      Work done on a lot by a sab-contractor — evidence authorizing a judgment against■ the owner of the lot.

    In an action brought to foreclose a mechanic’s lien and recover the value of work done in digging a foundation for the defendant’s house, upon his land, the proof was clear that the defendant knew of the progress of the work under a contract made between the plaintiff and the contractor employed by the defendant, and under the direction of the defendant’s architect.

      JB.eld, that proof that such work had been completed according to the requirements of the architect authorized a judgment in favor of the party doing it. against the owner of the house and lot.

      Appeal by the defendant, Howard Carroll, from a judgment of foreclosure and sale in favor of the plaintiffs, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of July, 1893, upon the report of a referee.
    The action was brought to foreclose a mechanic’s lien on property in the city of Yonkers.

      J. M. Dittenhoefer, for the appellant.

      John J. Orenncm, for the respondents.
   Barnard, P. J.:

The defendant Carroll is the owner of a lot of land in Yonkers. He sent to defendant Koch, a carpenter and builder, to come to his office, and upon his arrival told him that he wished him, Koch, to build a house on this lot for him. Koch accepted the employment. A few days after this, in August, 1891, Koch was directed to start the house at once. Mr. Seifert was Carroll’s architect, and within a day or two Koch employed the plaintiffs to dig the foundation. At this time only the foundation plan was made out. New agreed with Koch to excavate the foundation for $520. Subsequently the extent of the excavation was increased by order of the architect, and this increase cost $240. The entire excavation was done under the direction of the defendant Carroll’s architect. Before the excavation was finished Koch was taken sick and was not able to build the house, but the same was finished by other parties on the foundation made by plaintiffs. Koch agreed to give $520 for the original work, and although the plaintiffs said it was too much no one stopped the plaintiffs or told them that the agreed price was not to stand. On this proof the referee properly found that the plaintiffs were employed by Koch; that Koch, as to this work, was a contractor with Carroll; that it was worth $520, the agreed price, and that the extra work was worth $240. Nothing has been paid to Koch, or to the plaintiffs, on account of the work. The referee also justly and properly found that there was due from the owner to Koch, the contractor, the sum of $760. The proof is clear that the owner knew of the progress of the work under the contract with Koch, and under the directions of his own architect, and that it was completed according to the requirements of the architect. The facts found authorize the judgment. (Otis v. Dodd, 90 N. Y. 336; Miller v. Mead, 127 id. 544; Pell v. Baur, 133 id. 377.)

The judgment should be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Judgment affirmed, with costs.


text:
    The People of the State of New York v. William Nooney.

      Sail bond — defendant’s subsequent conviction of another offense 'no reason for the remission of a forfeiture of the bond.

    An indictment for assault was regularly before a Court of Sessions for trial in May, 1890; tlic defendant did not appear and his bond was forfeited and judgment was recovered thereon by the People on January 7, 1891; the only reason given for such absence or for the remission of the forfeiture was that in January, 1891, or soon thereafter, the defendant pleaded guilty to a charge of larceny before another court of the State, and was sentenced to a long period of imprisonment. Held., that no case was made for the remission of the forfeiture.
    Appeal by Thomas F. Farrell, the surety of the defendant, from an order made by the County Court of Orange county and entered in the office of the clerk of that county on the 7th day of October, 1892, denying his motion to remit the forfeiture of the bail bond or undertaking of the defendant.

      John W. Lyon, for Thomas F. Farrell, surety,'appellant.

      M. II. Ilirschberg, District Attorney, for the respondent.
   Barnard, P. J.:

The papers show that in April, 1890, the defendant, William Nooney, was indicted in Orange county for an assault in the second degree. The defendant gaye a bond, with Thomas F. Farrell as his-surety, for his appearance at the trial. The indictment was regularly before the Court of Sessions of Orange county in May, 1890, for trial, and the defendant did not appear. The bond was forfeited and judgment recovered upon it by the People on the 7th of Januuary, 1891. No case is made for a remission of the forfeiture. The only reason given is that, in January, 1891, or soon after, the defendant Nooney pleaded guilty to a charge of larceny in the first degree in New York, and was sentenced to a long period of imprisonment. At tlie time of the default no reason existed why the defendant did not appear for trial. If it had then been impossible for the defendant to appear a good case would be made for a remission of the forfeited recognizance. This cause of action was complete and judgment recovered upon it before, by the criminal act of the defendant, he became a convict and was sentenced to the State prison. The bond should, therefore, be paid.

The order should be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Order denying motion to remit forfeiture affirmed, with costs.


author: Barnard, P. J. :

text:
    Jonas Saltzman, Respondent, v. The Brooklyn City Railroad Company, Appellant.

      Railroad — personal injury — a cuse for the j ary — evidence of a surgeon.

    On the trial of an action brought to recover damages for injuries sustained, it was claimed, on behalf of the plaintiff and denied by the defendant, that the defendant received the plaintiff upon its car, which was so crowded on the inside that he was finally crowded to one side of the platform and then to the step ; and then by reason of the jolting of the car the plaintiff was thrown -from the platform and injured.

      Meld,, that the case was a proper one for the jury.
    In such an action it is proper to permit a surgeon to testify that, in his opinion, the injury received was liable to grow worse.
    Appeal by the defendant, the Brooklyn City Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of May, 1893, upon the verdict of a jury for $1,000, rendered at the Kings County Circuit, and also from an order entered in said clerk’s office on the 24th day of May, 1893, denying defendant’s motion to set aside the verdict and for a new trial made upon the-minutes.

      Morris da Wlvitehouse, for the appellant.

      Julius Klcrnvp, for the respondent.
   Barnard, P. J. :

On the 14th of March, 1892, the defendant received the plaintiff upon its car, which was entirely filled inside, so that he was compelled to stand upon the platform in the rear. The car stopped at frequent intervals to receive more passengers, so that the plaintiff was crowded to one side of the platform and then to the step. At this time the horses attached to the car began to run faster and the car jounced up and down so that the plaintiff was thrown from the platform and injured. Under these facts, proven by the plaintiff and denied by the defendant, the case was one for the jury, (Lehr v. S. & H. P. R. R. Co., 118 N. Y. 556.)

The very statement of the facts presents a case where the contributory negligence upon plaintiff’s part shows a case for the jury. This is the general rule, and the particular facts in the case furnish no exceptions to its appliance here. Assuming the facts as necessarily found by the jury, there is no basis for even a question as to the plaintiff’s negligence. He got upon the car at defendant’s invitation, as a passenger, and it was so overloaded that he was forced to stand upon the step. While in this insecure position, the defendant increased the speed of its car so as to jolt the passenger from his standing place, whereby he was injured.

It was proper to permit the surgeon to answer that, in his •opinion, the injury was liable to grow worse. (Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y. 77.)

The judgment and order denying new trial should be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    Mary Hennessy, Respondent, v. The Brooklyn City Railroad Company, Appellant.

      Surface railroad company — use, of its tracks by a wagon — negligence.
    A surface railroad company lias a paramount but not'an exclusive right to use its tracks.
    A person has a right to drive upon a surface railroad company’s tracks, subject to. a careful regard for the rights of the rnilroad company, but he is bound to be vigilant to discover an approaching train, and quick to leave the tracks when such train is discovered.
    A surface railroad company, whose cars wore propelled by steam dummies, drove its cars at a high rate of speed on a dark, foggy night, without warning by bell or whistle, and without observing the rule which required notice to be given at a place -whore a highway was crossed at grade by the railroad.

      Held, that it was guilty of negligence in colliding with a horse and wagon upon its tracks.
    The wife and companion of the driver of a vehicle is responsible only for her own negligence, and her recovery of damages for injuries sustained by her cannot be .defeated by the negligence of the driver.
    Appeal by tbe defendant, tbe Brooklyn City Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Kings on tbe 17th day of March, 1893, upon tbe verdict of a jury for $1,200, rendered at tbe Kings County Circuit, and also from an order entered in said clerk’s office on tbe 20tb day of March, 1893, denying tbe defendant’s motion to set aside tbe verdict, and for a new trial made upon tbe minutes.

      Morris & Whitehouse, for tbe appellant.

      *Tonnes G. GJmrch, for tbe respondent.
   Barnard, P. J.:

The defendant lias a double track on tbe surface of Third avenue, Brooklyn. Tbe tracks are laid about tbe middle of tbe highway, and are made like those of horse railroads, but tbe cars are propelled by steam dummies. On tbe 25th of December, 1891, tbe plaintiff, with her husband and children, were driving in a wagon upon this avenue from Gravesend. When they reached Third avenue they drove upon, and continued to drive upon it towards Bay Ridge. They drove upon the right-hand track, according to the custom of travel upon this avenue, until they reached Seventy-sixth street. They saw a train approaching. At this point the right-hand side of the highway Avas obstructed, and they turned to the left across the defendant’s track. No train was visible, and no bell or whistle aats heard. There is a hill which obstructs the sight of an approaching train upon the left-hand track at this point. Only a very short distance can be'seen. As soon as they attempted to cross to their left, the headlight of the train suddenly became visible. The husband, the driver, turned to the right again, but before they could free themselves from the track, they Avere hit by the train, and the plaintiff was injured. The proof of the defendant’s negligence AAras clear. The defendant had a paramount right to these tracks, but not an exclusive right. (Fleckenstein v. Dry Dock, etc., R. R. Co., 105 N. Y. 655.)

The plaintiff had a right to driAre upon the tracks, subject to a .careful regard to the rights of the railroad company. The defendant drove its cars on a dark night, with some fog, at a high rate of speed, Avitliout warning by bell or whistle. The rule which requires notice at a place wjiere a highway is crossed upon grade by a railroad, should have been observed. There was no negligence which can- be imputed to the owner of the wagon, plaintiff’s husband. HaAÚng a right to drive upon the railroad track, he was bound to be vigilant to discover an approaching train, and quick to leave the track when he did discover it. The train approaching behind him was to be avoided, and he could not go to the right by reason of obstructions having been placed there. He got in this position by reason of a failure by defendant to give notice of its fast approaching train from an opposite direction. As soon as he discovered his danger he attempted to avoid it, but was too late. If the driver had been hurt, there is no such a ease as Avould justify taking the question of his contributory negligence from the jury. As to the wife, a-mere passenger with him in the wagon, she is responsible only for her own neglect, and her right of recovery for injuries cannot be defeated by the negligence of the driver. (Hoag v. N. Y. Central & H. R. R. R. Co., 111 N. Y. 199; Brickell v. N. Y. Central & H. R. R. R. Co., 120 id. 290.)

The judgment and order denying new trial should be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    William Ziehen, Respondent, v. David J. Smith, Appellant, Impleaded with Another.

      Tender in an action for the breach of a contract of sale — fraudulent representations — recoreip of the purchase ps'ice.

    Performance or an offer to perform by the plaintiff is necessary in an action brought for the recovery of damages arising, out of a breach of a contract, but no tender is necessary where the performance is waived, or is made impossible of execution by the person against whom the damages are claimed.
    Where a person agreed to sell property to another for a certain price, and made a representation that there was only one mortgage of a certain amount thereon, when, in fact, to Ms own knowledge, there was a second mortgage thereon, and the proposed purchaser paid a portion of the purchase price, the fraud is established by proof of the falsehood as to the second mortgage, and the right to recover back the payment is instantaneous with proof of the fraud.
    Appeal by tbe defendant David J. Smitli from a judgment of the County Court of Rockland county in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the-6th day of February, 1893, upon the verdict of a jury for $536.25, and also from an order entered in said clerk’s office on the 3d day of April, 1893, denying the defendant’s motion to set aside the verdict,, and for a new trial made upon the minutes.

      iSnide?' & Hojpjper, for the appellant.

      Abram A. Demarest, for the respondent.
   Barnard, P. J.:

On the 10th of August, 1892, David J. Smith made an agreement with the plaintiff to convey certain premises to him in Rock-land county, for $3,500. The conveyance was to be subject to a. mortgage of $1,000. . Five hundred dollars was to be paid when the contract was executed, which was done. The defendant John II.. Smith, signed the contract for David J. Smith, the owner. The agreement recited that there was only a mortgage of $1,000 on the property, while, in fact, to the knowledge of both defendants, there was an additional mortgage „of $1,500 which swejrt the title away from the defendant, the owner. The plaintiff has obtained no conveyance, and has had no repayment to him of the $500. The $1,500 mortgage was in course of foreclosure when the $500 was paid, and the property was sold in December thereafter. The contract was proven on the trial, the payment of the $500, the foreclosure and sale under the $1,500 mortgage, and that John II. Smith was an owner of the property, and sold it to David J. Smith in May, 1892. John H. Smith gave the $1,500 mortgage while he had title. The objection made to the plaintiff’s recovery is that no offer wras made to the Smiths, one or both, to perform ; performance or an offer to perform is necessary in cases for damages for breaches of contract; but it is a universal exception .that no tender is necessary where the performance is waived or performance is impossible by the party against whom "damages are claimed. The fraud was made out by the proof of the falsehood as to the second mortgage. The right to recover the payment arose instantaneously upon proof of the fact which made out the fraud.

The judgment and order denying new trial should be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.


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    Theodore Randolph, Respondent, v. Robert B. Murray, Appellant.

      Pleading — action for services under a contract that is silent as to the time of payment.

    Wliere a complaint sets out a contract and alleges tliat the plaintiff did work under it; that hy the terms thereof the services were not necessarily for an entire term of one year; that a specified amount was due thereunder, and. that all the conditions to he performed by the plaintiff to entitle him to such amount had been performed, a good cause of action is alleged although the contract is silent as to the time of payment.

      Appeal by the defendant, Robert B. Murray, from a judgment, of the County Court of Rockland county, entered in the office of the clerk of the county of Rockland on the 15th day of May, 1893,. affirming the judgment of a justice of the peace.

      William E. Gowdey, for the appellant.

      Richard S. Harvey, for the respondent.
   Barnard, P. J.:

The complaint sets out two causes of action. One is upon a. promissory note made by the defendant. There is no answer to this cause of action. The second cause 'of action is for work done under a contract, which is set forth by the complaint. By this contract the plaintiff agreed for the space of one year from May 23, 1892, to do certain printing in two newspapers in Rockland county. The defendant agreed to pay certain specified rates for-setting up and printing the publication. The agreement is silent as to the time of the payment. The complaint avers that there was due the plaintiff under the contract on the 21th of October, 1892, the sum of fifty-five dollars and thirty-three cents, for services rendered and material supplied, and that such sum was-demanded by the plaintiff from the defendant and was not paid. The defendant demurs to this second cause of action for a failure-to set up facts sufficient to constitute a cause of action. Under the rule that a demurrer admits the facts stated, the pleading is-good. The contract, by its terms, permits either party to terminate it on a notice of sixty days. An admission, by the defendant, that, on a contract, there was something due to the plaintiff for work done under it, would support a judgment for the sum admitted to-be due: The agreement may have been one for weekly payments, in the view of the parties, and it may have been abx-ogated. The-admission of a sum due would be sufficient, in the absence of contradiction, to establish a right to judgment for it. The averment of a specified sum due on the account is aided by the allegation contained in the complaint, that the plaintiff has performed all the conditions of the contract on his part.

The whole cause of action is equivalent to this: The plaintiff sets out a contract; alleges that he did work under it; by the terms of the contract the services were not necessarily for an entire term of one year; that fifty-five dollars and thirty-three cents was due upon it, and that all the conditions to be performed by the plaintiff, to entitle him to that money, had been performed.

The defendant says that these allegations are all true.

The judgment should be affirmed, with costs.

Pratt, J.; concurred.

Judgment affirmed, with costs.


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    Edward D. Burt and Another, Appellants, v. William H. Nafis, Respondent.

      Compulsory reference.

    An action was brought to recover the sum of $645 from the defendant, an attorney at law, who, it was alleged, was employed to pass the title of certain premises sold by the plaintiffs for $10,000, which sum was paid to the defendant, who paid the plaintiffs $9,355 thereof, and retained the balance, which he refused to turn over, alleging in his answer that it was retained by him for services rendered and disbursements made in the matter, with the plaintiffs’ assent.

      Held, that even if the trial involved the necessity of proof of the items of the services rendered, the case was not referable by compulsion.
    Appeal by tbe plaintiffs, Edward D. Burt and another, from an order made at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 15th day of March, 1898, directing that the action be referred to a referee therein named to hear, try and determine the issues.

      George G. Dutcher, for the appellants.

      Jesse K. Furlong, for the respondent.
   Barnard, P. J.:

The plaintiffs are the executors of Charles Whiting, deceased. In 1889, acting under a power of sale given by the will, they sold certain premises of the deceased to Kronacher & Etziel for the sum of $10,000. The defendant is an attorney at law, and was employed to pass the title. The deed was delivered and the money consideration paid to the defendant. He paid to the plaintiffs $9,355 and retained $645. The action is brought to obtain a judgment for this sum. The defendant, in his answer, avers that there was a serious defect in the title of record. That very valuable services were rendered in removing the defect, and considerable sums of money were expended by defendant in securing the proper releases to remove the objection made to the title. The answer further alleges that the sum of $645 was the price agreed upon between the plaintiffs and defendant as the fair and reasonable value of - the defendant’s services and expenditures, and that that sum was deducted from the amount received by the defendant, with the assent of the plaintiffs. The case is not referable compulsorily. The only issue is one of payment.

If the trial involves the necessity of proof of the items of services rendered under the releases to remove defects of title, the case is not referable by compulsion.

The case presented cannot be distinguished from Randall v. Sherman, (131 N. Y. 669) and the case of Spence v. Simis (137 id. 616).

The order should be reversed, with costs and disbursements to abide event of action.

I) y km an, J., concurred; • Pratt, J., not sitting.

Order reversed, with costs and disbursements, and motion denied, costs of appeal and motion to abide event.


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    William Riley, Appellant, v. Mary A. Riley, Respondent.

      Action to annul a marriage contract.

    There is no rule of law that will enable a husband to annul the marriage contract on the ground that his wife has a swollen tongue or inflammation of the bladder.
    Appeal by the plaintiff, William Riley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 15th day of October, 1892, upon the decision of the court rendered after a trial at the Westchester Special Term.

      William, Riley, appellant, in person.

      Thayer & Small, for the respondent.
   Pratt, J.:

This action was brought to annul the marriage between plaintiff and defendant on the grounds that the defendant, at the time of the marriage, was physically incapable of contracting marriage; that such incapacity was known to her but unknown to him, and was fraudulently concealed from him by the defendant.

The parties intermarried on July II, 1890, and cohabited together until shortly before this action was commenced in June, 1892, a period of nearly two years. They had twins born to them in February, 1891, about seven months after their marriage, one of which died on the night of its birth, the other about three months later. This would seem to dispose of the cpiestion of defendant’s want of capacity, unless plaintiff expected her to have triplets.

As to the other grounds alleged by plahitiff, it is sufficient to say that they were not proven, neither the incurable defects nor their fraudulent concealment, and, even if proven, we know of no rule of law that will enable a husband to a2innl the marriage contract on the ground that his -wife has a swollen tongue or inflammation of the bladder.

We are satisfied that the court at Special Term made a proper disposition of the case, and that the judgment should be affirmed,. with costs.

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

Judgment affirmed, with costs.


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    James M. Campbell and Another, Respondents, v. The United States Foundry Company, Appellant.

      Action for damages — complaint — negligence — nuisance — ground of verdict immaterial — evidence.

    ■Where damage to the property of a person is the necessary consequence of another’s business, oris incident to that business, or the manner in which it is conducted, the law of negligence has no application and the law of nuisance applies.
    There is no rule of pleading which requires the complaint in an action for damages to allege as a fact that the acts complained of constituted a nuisance. It is sufficient if it states that the defendant so negligently and carelessly did certain acts as to cause the damage.
    In an action brought to recover damages sustained by reason of the destruction, of the plaintiffs’ property by a fire, alleged to have been ignited by a spark from the chimney of defendant’s smelting furnace, a verdict was rendered in favor of the plaintiffs.

      Held, that it was immaterial whether the verdict was rendered on the ground that the defendant was liable because of the negligent way in which it conducted its business, or because its methods created a nuisance.
    In such an action it is proper to allow testimony to be given to the effect that sparks had been emitted from the chimney of the defendant’s foundry since the fire, when it has been proven that the chimney was at the time in the same condition as it was prior to the fire.
    Appeal by tlie defendant, the United States Foundry Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 28th day of April, 1893, upon the verdict of a jury rendered at the Queens County Circuit, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial.

      George JE. Coney, for the appellant.

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

This is an appeal by the defendant from a judgment entered on a verdict in favor of plaintiffs, and from the order denying defendant’s motion for a new trial.

The action was brought to recover damages sustained by plaintiffs in the destruction of their property by fire occasioned by sparks from defendant’s foundry.

Plaintiffs had a hay and feed store on Division street, Long Island City; the defendant had its foundry about 150 feet west of plaintiffs’ store, where it was engaged in the manufacture of weights from tin cans, scraps of tin and the like. For the purpose of smelting, the tin was put into defendant’s furnace, where it was subjected to a strong draught of air and great heat — some 2,700 degrees. In this way the metal, when it became molten, fell to the bottom of the furnace and was then drawn off into moulds. Surmounting the furnace was a chimney of boiler iron, fifty-eight feet high, on the top of which at one time defendant had placed an iron plate, with holes or iron netting, for the purpose of arresting the sparks. This spark arrester had become dilapidated, and was not in use at the time of the fire. It was shown on the trial that on two or three occasions the sparks from defendant’s chimney, which were described as red hot and from one to two inches square, had fallen on paper or hay on the plaintiffs’ premises and ignited it. At the time of the fire Mr. Campbell and one of his men were engaged in loading hay. A strong wind was blowing from the west, and Mr. Campbell testified that he saw sparks coming from defendant’s foundry, which lighted on and in their building; that they stamped ‘out what sparks they could, but that the hay in the building took fire and they were unable to extinguish it, and the loss complained of occurred.

There was some conflict of evidence, but the question of the origin of the fire, whether from sparks from defendant’s chimney or not, was one of fact, and properly left to the jury to decide. It is quite immaterial on which ground the jury held the defendant liable, whether from negligence in the way it conducted its smelting, or because its methods created a nuisance. There was evidence that appliances for arresting sparks were used, and when used, prevented sparks from escaping from chimneys like defendant’s ; that defendant had at one time used one on its chimney, but did not use it at the time of the fire. If the jury believed this evidence a clear case of negligence was proved. But suppose the contention of the defendant be true, that it was impossible, by reason of the great heat, to maintain a spark arrester on top of its chimney. The case then becomes one of nuisance. .The law as to damages resulting from nuisances is well settled. “ Where the damage is the necessary consequence of just what the defendant is doing, or is incident to the business itself, or the manner in which it is conducted, the law of negligence has no application and the law of nuisance applies.” (Opinion of Judge Brown, Bohan v. Port Jervis G. L. Co., 122 N. Y. 26.) The evidence clearly shows that the defendant maintained a nuisance in conducting its business at the time of the fire.

We know of no rule of pleading which requires a complaint in an action for damages to allege, as a fact, that the acts complained of constituted a nuisance. It is sufficient, as alleged in the complaint in this action, to state that “ the defendant so negligently and carelessly ” did those acts as to cause the damage.

The defendant excepted to the admission of evidence to the effect that sparks had been emitted from its chimney since the fire. That ruling was a proper one. Plaintiffs had proved that the chimney was in the same condition as before the fire. This is the only exception that seems to require any comment.

The charge of the trial judge correctly stated the law, and his disposition of the defendant’s requests to charge was as favorable to the defendant as it could have expected,

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

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

Judgment and order denying new trial affirmed, with costs.


author: Pratt, J.: Barnard, P. J.

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    Hartford Fire Insurance Company, Appellant, v. Robert H. M. Dickenson and Another, Respondents.

      Discharge of a firm debt by the note of the wife of one mmriben' —■ allegation of payment.

    What evidence is sufficient to sustain the finding of a referee that the giving of her individual note hy the wife of one of the two members of an insolvent firm to one of its creditors was accepted hy such creditor in discharge of the debt of such firm.
    What is a sufficient allegation of payment in an answer.
    Appeal by the plaintiff, Hartford Fire Insurance Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rockland on the 3d day of July, 1893, upon the report of a referee dismissing the plaintiff’s complaint and for costs.
    The ninth, eleventh and thirteenth paragraphs of the answer read as follows:
    “ Ninth. Defendant, further answering the complaint herein and for a separate defense thereto, alleges, upon his information and belief, that the plaintiff has been paid all and every amount due it from the firm of James II. Blauvelt & Company or from this defendant, and every sum of money for which this defendant may in any manner have been liable to the plaintiff.”
    “ Eleventh. That, as the defendant is informed and believes, the said moneys so collected as above stated were received, held and paid over by the said defendant James II. Blauvelt, with the knowledge and consent of the plaintiff, and that said defendant Blauvelt was alone the agent of the plaintiff for the puipiose of receiving, holding and paying over and transmitting to it all premiums collected, and that this defendant was at no time prior to August 15, 1891, the agent of the plaintiff for any such purpose.”
    “ Thirteenth. That, as this defendant is informed and believes, all moneys at any time received by him, and for which he for any reason became liable to the plaintiff, were paid by him to the plaintiff, or to other companies for whom these defendants did business, which payments were made with the knowledge and consent of the plaintiff.”

      George W. Weiant, for the appellant.

      Snider cfe Hopper, for the respondents.
   Pratt, J.:

"We think the answer in this case sufficiently alleged payment of the plaintiff’s claim in the ninth, eleventh and thirteenth paragraphs thereof, and that the findings of the referee are sustained by the evidence.

The finding is that Mrs. Blauvelt, as the agent of James H. Blauvelt, paid the claim in suit and the same was received by the plaintiff in payment and satisfaction thereof.

The finding is explicit that the intention of the parties was to have the payment discharge the obligation. All the surrounding circumstances corroborate this theory.

Mrs. Blauvelt and Polliemus succeeded to the business and met the plaintiff to perfect the arrangements to go on with the business. Mrs. Blauvelt testifies that she was authorized to act for her husband, who had the right to pay the debt, and that she did pay a part of it and Polliemus the balance. There is no contradiction of the testimony given by Mrs. Blauvelt and defendant Dickenson, and it is evident from the conduct of the parties that a full settlement was made at the time the business was turned over to the new firm of Blauvelt & Oo.

There are many exceptions taken, but none of sufficient merit to reverse the judgment.

The result is just and the judgment must be affirmed, with costs.

Dykman, J., concurred.

Barnard, P. J.

(dissenting):

The facts are not disputed. The defendant and James II. Blauvelt were partners in business at Nyack, Rockland county, as insurance agents. The firm failed, owing the plaintiff a considerable sum for premiums collected. The wife of Blauvelt applied to the plaintiff to become its agent, and agreed, in consideration of being appointed, to pay the firm debt. The company agreed to and did appoint her agent. She paid a portion of the debt in cash and gave her note for the remainder, which she has not paid. The firm had no connection with the transaction, and there was no agreement even that the wife’s note should be accepted in satisfaction of the firm’s debt. The referee, on these facts, erroneously found that the firm debt was paid by the unpaid note. There was no payment, probably not even so far as the cash payment, by the wife. The debt was not discharged. (Madison Square Bank v. Pierce, 137 N. Y. 444.)

The judgment should be reversed and a new trial granted, costs to abide event.

Judgment affirmed, with costs.


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    In the Matter of the Application of John P. Adams, as Commissioner of City Works, etc., to Acquire Lands for Street Purposes.

      Condemnation proceedings — valuation of the title of an individual to a street subject to the easements of abutting owners.

    Where the title to land proposed to be taken for a public street is in an individual, subject to the easements of passage of the abutting owners, in condemning the street for public use the valuation by commissioners of such individual's interest therein at a nominal sum is proper.
    Appeal by the petitioner, John P. Adams, as commissioner of city works of the city of Brooklyn, from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of October, 1892, denying a motion to confirm the report of the commissioners of estimate.

      Abnet O. Jenlis, for the petitioner, appellant.

      James G. Bergen, for the respondent.
   Barnard, P. J.:

Upon the application of John P. Adams, commissioner of city works, three appraisers were appointed to assess the value of “ all the land lying between Third and Fourth avenues in Fifty-first street as the same is laid down on the commissioners’ map of the city of Brooklyn.” The land was the property of Thomas Hunt in his lifetime and was needed for the public use. The commissioners of appraisal reported the value of the land to be six cents. The court at Special Term refused to confirm the report upon the ground that the damages were substantial, and this appeal brings up the question of the value for the purpose of condemnation to public use. The proof shows that the premises in question were known as Fifty-first street on a map made and filed by Thomas Hunt’s executors, and lie between Third and Fourth avenues. The map shows a certificate indorsed thereon by the executors that the streets and avenues designated therein were solely for the purpose of descriptions and references, and that there wras no intention to dedicate the lands to public use as streets of the city or to any public use. The executors sold lots on the street expressly stating in the deed that the conveyance was of the street up to the center line. The commissioners’ valuation was right. The grantees in the deed, each and every of them, own to the center of the street in front of the lots, with a right to have the entire street remain open forever for their free passage. This would be their right over such parts of the street as were unconveyed by executors. The only difference between this condition of things and what would exist on- a full dedication of the street is simply this : The owner and all the lot owners could shut up the street, which they could not do' on a public street. This contingency is so remote in a great city that the appraisal commissioners did right in disregarding its probability or even possibility. The street was made to'be open and always <*pen after lots were sold on it, and. the value of tlie fee of a public highway is only nominal. (Trustee, etc., v. Cowen, 4 Paige, 510; Bissell v. N. Y. Central, 23 N. Y. 61; Wiggins v. McCleary, 49 id. 346.)

The order refusing to confirm award is, therefore, reversed, with costs and disbursements, and the report confirmed.

Pratt, J., concurred; Dykman, J., not sitting.

Order setting aside report of commissioners reversed, with costs and disbursements, and report confirmed.


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    In the Matter of the Application of The People of the State of New York ex rel. John F. Dobson, to Compel the Fire Commissioners of the City of Brooklyn to Fix His Salary, etc.

      Brooklyn fire department —1892, chapter 710.
    Chapter 710 of the Laws of 1892 (lid not repeal the provisions of the charter of the city of Brooklyn in relation to the salaries of the members of its fire department.
    Appeal by the relator, John F. Dobson, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of August, 1893, denying his application for a writ of mandamus to compel the fire commissioners of the city of Brooklyn to fix his salary at not more than $2,500 nor less than $1,800 per annum.

      John A. Quintar cl and William P. Pickett, for the relator.

      Almet T\ Jenks, for the respondent, the People.
   Barnard, P. J.:

The relator is a member of the fire department of the city of Brooklyn. By the charter of the city (Chap. 583, Laws of 1888) the compensation of the relator was provided for. (§§ 5, 6, tit. 13.) In 1892 the Legislature passed this act:

“ Chapter Y10.
“An act in relation to the compensation of the "’officers of the uniformed force of the fire department in all cities of the State having, according to the last census, a population exceeding nine hundred thousand.
“ Approved by the Governor May 30, 1893. Passed, tliree-fifths being present.
“ The People of the State of New Pork, represented, in Senate cmd Ass&inbly, do enaot as follows:
Section 1. The board of fire commissioners in all cities of this State having, according to the last census, a population exceeding nine hundred thousand, are hereby authorized and empowered, with the ajiproval of the board of estimate and apportionment, to fix and determine from time to time the salary of the members of the fire department; the chief of the department, whose salary shall not be more than six thousand dollars nor less than five thousand dollars, and the two deputy chiefs, whose salary shall not be more than forty-five hundred dollars nor less than thirty-five hundred dollars, and the chiefs of battalion, whose salary shall not be less than twenty-seven hundred and fifty nor more than three thousand five hundred dollars; and to captain or foreman of the department, whose salary shall not be more than twenty-five hundred dollars nor less than eighteen hundred dollars, and to assistant foreman or assistant captain, whose salary shall not be more than eighteen hundred dollars nor less than fifteen hundred dollars.
§ 2. The pay or compensation mentioned in the foregoing section shall be paid monthly to each person entitled thereto, subject to such deduction for and on account of lost sick time, disability, absence at fires as the said board may by rules and regulations from time to time prescribe and adopt.
“ § 3. All acts and parts of acts inconsistent with this act are hereby repealed.
“ § 4. This act shall take effect immediately.”

This law did not repeal the provisions of the charter in respect to the relator. Such is the general rule. (McKenna v. Edmudnstone, 91 N. Y. 231.)

There was a lien law in this case applicable to New York county only. Subsequently a general lien law was passed applicable to the cities of the State. The Court of Appeals held that the local law was not repealed by the general law governing a lien in the cities of the State, The State rule was approved in Van Denburgh v. The Village of Greenbush (66 N. Y. 1); Buffalo Cemetery Association v. City of Buffalo (118 N. Y. 61).

The act of 1892 was a general statute. (Matter of The Evergreens, 47 N. Y. 216.)

It purports to apply to all cities having a certain population in the State. There is no legislative intent to repeal the charter contained in the language of the law. By chapter 218, Laws of 1887, a law was passed in the same general terms applicable to cities of over 900,000 population. That act recited correctly the officers in the city of New York which was the only city, in fact, having that population at that time. The law of 1892 denotes correctly the officers of the New York fire department and fails to declare the Brooklyn city officers who govern and operate that department. Brooklyn has no board of fire commissioners, but one commissioner of fire. There are no chiefs or deputy chiefs, or captains or assistant captains in Brooklyn, and no board of estimate or apportionment. There is a board of estimate only. There exists a foreman imNew York and Brooklyn, but this is entirely insufficient to compel the execution of a law clearly applicable in all its parts to New York only.

The order should he affirmed, with costs and disbursements.

Pratt, J., concurred.

Order affirmed, with costs and disbursements.


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    The Upper Nyack M. E. Church, Respondent, v. John A. Bennet and Others, Appellants.

      Action of trespass — what is not an excessive verdict.

    In an action of trespass it appeared that tlie defendants entered upon the plaintiff's property by force, and without its permission cut down two hickory trees and one cedar; the hickory trees were shown to be worth $200 each, and the injury to the entire lot was proved to have reduced the value of the premises nearly or quite $1,000.

      Held, that the finding of a jury that the value of the trees was $300, and the other injury from the trespass $50, was not excessive.

      Appeal by the defendants, J olm A. Bennet and others, from a judgment of the Supreme Court., entered in the office of the clerk of the county of Rockland on the 2(5t.li day of June, 1893, upon the verdict of a jitry rendered at the Rockland County Circuit, and also from an order made at Special Term and entered in said clerk’s office on the 12th day of June, 1S93, denying the defendants’ motion for a new trial made upon the minutes.

      Thomas Lawrence, for the appellants.

      Abram A. Demarest and Wm. T. B. Storms, for the respondent.
   Barnard, P. J.:

The plaintiff established a good and valid title to the premises in question. The land was conveyed in 1813 by one 'William Palmer to certain trustees “ to erect a house of worship for the use of the members of the Methodist Episcopal Church in the United States of America.” Subsequently, under a general act for the incorporation of religious societies, the plaintiff was incorporated by a certificate duly filed, and in 1859 the sole surviving trustee named in the deed conveyed the property to the plaintiff. The church has been used for religious services for many years. The defendants entered upon the property by force and without permission of the owner and cut down two beautiful shellbark hickory trees and one cedar. The hickory trees were proved to be worth $200 each, and the injury to the entire lot caused by digging up sod and removing fences, as well as the trees, was proved to have reduced the value of the premises nearly or quite $1,000. The jury found the value of the trees to have been $300, and the injury from the trespass otherwise fifty dollars. These amounts were not excessive under the evidence. The injury was great. The trees were in their prime and made the church, with them, “ a picturesque thing,” as described by the defendant Bennet. This picture was destroyed and the plaintiff is entitled to recover the amount given by the jury as the damages sustained thereby.

Judgment and order denying new trial affirmed, with costs.

Dykman, J., concurred.

Judgment and order denying new trial affirmed, with costs.