author: “Freedman, J. Per Curiam.

text:
    JAMES C. DUFF, Respondent v. LILLIAN RUSSELL, Appellant.

      Injunction to restrain defendant from singing and playing and giving theatrical performances under an operatic manager other than plaintiff during the period covered by her written contract with the plaintiff.

    The facts stated in the opinion of the judge at special term contain all the elements necessary to sustain an injunction, within the rule laid down in Daly v. Smith, 38 N. T. Superior Ot. Rep., 158, against defendant’s appearance at the Casino. The claim advanced by defendant that she was justified in breaking her contract with plaintiff because he had refused to substitute a more healthful costume than the tights, the wearing of which she had objected to on the ground of danger to her health, has no foundation, in fact, as appears from the case. The controversy was narrowed down to the question, whether the plaintiff so unreasonably insisted upon his rights under the contract, to the detriment of the health of the defendant, that in equity and good conscience the defendant was justified in breaking off her engagement.

      Held, that upon a careful consideration of all the facts and circumstances as disclosed by the evidence on both sides, the defendant was not justified in so doing; and the proof justifies the conclusion that the excuse of the defendant, in this respect, was in a great measure a mere pretence, and should not he sustained.
    Before McAdam and Gildersleeve, JJ.

      Decided December 15, 1891.
    Appeal from a judgment entered in favor of plaintiff against the defendant for damages and costs, and adjudging that the plaintiff was and is entitled to the injunction granted in this action. The facts in the case fully appear in the opinion of the judge at equity term, as follows :
   “Freedman, J.

This action is brought by the plaintiff, a theatrical and operatic manager, to restrain the defendant from appearing as a singer or actress upon the stage of the Casino, in the city of New York, during the period of her contract with the plaintiff.

“ A preliminary injunction having been granted, and it appearing, upon the hearing of the motion for the continuance of the injunction during the pendency of the action, that the defendant had made a contract in writing with the manager of the Casino, and had been extensively advertised to appear at that theatre within a few days thereafter, it was arranged between the parties, hut without prejudice to the rights of either, that the defendant upon giving an undertaking in the sum of $2,000, conditioned to pay that sum as liquidated damages in case it should be finally determined that the plaintiff is entitled to an injunction herein, might go on and fulfill her contract at the Casino.

The undertaking having been given, as agreed, and the rights of both parties having been expressly preserved, the fact that plaintiff’s contract with defendant has since that time expired, is not to be considered, and the case still calls upon the court to determine plaintiff’s original right to injunctive relief.

“ The material facts, as they appear from the pleadings and the evidence, are that by written contract the defendant agreed with the plaintiff to appear in the soprano roles of such operas as the plaintiff might produce during the seasons of 1887-8 and 1888-’9, and in such cities in the United States as he might select; that in the production of each opera the plaintiff was to supply the costumes; that in New York seven performances were to be given each week, exclusive of Sundays; that each season was to commence in the month of October or November of each year and to last until May or June of the following year; that the plaintiff was to have the right to terminate each season by giving two weeks’ notice ; and that the defendant, for the faithful performance of her part of the said contract, was to receive the sum of $300 per week; that the defendant was and is an actress and singer distinguished in her profession and a great artistic acquisition both in name and dramatic and operatic service, to any theatre where comic operas are produced ; that the plaintiff, relying upon his contract, announced the defendant at large expense in the daily newspapers of this city and widely throughout the United States as a member of his company to the end of the season of 1889 ; that the defendant refused to perform in plaintiff’s opera which was produced at the Standard Theatre, in the city of New York, on Monday evening, January 7,1889, and which was to be continued for some weeks; that at that time the defendant had ■agreed to perform as an actress and singer at the Casino, ■a -rival of and competitor with the theatre, so far as the production of operas are concerned, which the plaintiff had engaged for his company, and had been announced with her 'consent to appear at the said Casino on Monday, January 14, 1889, and to continue to the end of the operatic season; that the plaintiff unsuccessfully protested against it; that it was not possible for the plaintiff to replace the defendant for the remainder of the season by any other actress and singer of equal repute; and that in consequence thereof the plaintiff was likely to, and in fact did, sustain irreparable damage. The proof, on the part of the plaintiff, that in this and other cities he did sustain large damages in consequence of defendant’s act, and that the extent of such damages cannot be accurately measured, is unusually clear and convincing.

“ The facts so far referred to contain all the elements necessary to sustain, within the rule laid down in Daly v. Smith, 38 N. Y. Super. Ct., Rep. 158, and followed in several cases since that time, an injunction against defendant’s appearance at the Casino.

“ It, therefore, remains to be seen whether there is anything else in the case which calls for a different conclusion.

“The defendant’s counsel insists that, inasmuch as there is no negative stipulation in the contract by which the defendant agreed not to appear elsewhere, the court cannot interfere. But, as was shown in Daly v. Smith, supra, the court is bound to look to the substance and not to the form of the contract. As the defendant had agreed to appear in seven performances in each week (exclusive of Sundays) which the plaintiff’s company might give in New York, it was not possible for her to perform elsewhere in New York without a violation of her contract with the plaintiff, and a negative clause was unnecessary to secure to the plaintiff exclusively the services of the defendant.

“ It is also insisted that the contract is inequitable in its terms, because it provides that two weeks’ notice of the termination of the season might be given by the plaintiff. It did not enable the plaintiff to discharge the defendant on two weeks’ notice, but a notice of two weeks of the termination of the season was to be given. So long as the company remained together and performances Avere given, tire plaintiff was bound to pay to the defendant the $300 per week, provided the defendant fulfilled her part of the contract. By the pleadings it stands admitted that the season of 1888-’9 was to close at about June 1, 1889, and in point of fact the plaintiff by letter notified the defendant that the said season would terminate not before the middle of May, or June 1, 1889. The point is therefore untenable.

“And finally it is insisted that the defendant was justified in breaking her contract with the plaintiff because the plaintiff had refused to substitute a more healthful costume for the tights in which the defendant had appeared in a certain opera, and the wearing of which she had objected to on the ground of danger to her health. It appears that the opera in question was called The Queen’s Mate.’ In this opera the defendant was to appear in a part which required her to wear tights. Before the production of the opera she was consulted by the plaintiff with regard to it, and informed that it would be necessary for her to wear tights, and she agreed that she would so appear. This has been admitted by her, but at the same time she claimed that she agreed to do so only during the summer. But in point of fact the plaintiff did appear in tights during cold weather and never claimed exemption by agreement during such weather, and inasmuch as the plaintiff had not only the right to prescribe the costumes but also the duty to furnish them, and no evidence has been adduced that the costumes of an opera change with the seasons of the year, or that the defendant ever claimed any right to such a change, I cannot find that the claim now advanced by the defendant in this respect has any foundation in fact. In point of fact the defendant did appear in this part and in tights for at least 150 nights, and from twenty to thirty chorus girls appeared in the same costume during each performance. Any change which might have been made in the costume of the defendant would have necessitated a corresponding change in the costumes of from twenty to thirty other persons.

The controversy is, therefore, narrowed down to the question whether the plaintiff so unreasonably insisted upon his rights under the contract to the detriment of the health of the defendant that, in equity and good conscience, the defendant was justified in breaking off her engagement. Upon a careful consideration of all the facts and circumstances as disclosed by the evidence on both sides, I cannot find that he did. The defendant undoubtedly at several times caught cold, but the real cause has not been proved. When, in answer to her claim that the cold was caused by the wearing of tights, she was advised by her own physicians, who, however were not informed of the fact that she wore them only for about ten minutes during each performance, that she should wear something underneath them which would protect her, she refused at once, not because the plaintiff objected to it, but because in her judgment it would ruin her outlines to do so. In fact, she never discussed the matter with the plaintiff with a view to compromise the difficulty, if any there was. If she had done so, and had made an honest attempt to convince the plaintiff that the wearing of tights, for even so short a time, seriously affected her health or voice, it is reasonable to suppose that the plaintiff, who had a direct interest in her appearing as often as possible, would have met her half way. She made no such attempt.

But the proof in this case goes much further. It justifies the conclusion that this excuse of the defendant was in a great measure a mere pretense.

" It was shown by the testimony of Mr. Aronson and the plaintiff, and finally admitted by the defendant, that while the defendant played for the plaintiff in the city of Chicago, during the latter part of October, 1888, Mr. Aronson, manager of the Casino, communicated with her by telegram, offering her an engagement with his company. Thereafter Aronson went from New York to Chicago and had an interview with the defendant, without the knowledge of the plaintiff, and of which the latter was never informed. During that interview Mr. Aronson was informed by the defendant that she was at liberty to accept an engagement from the first day of May, 1889, but that she might be able to begin her engagement earlier, if it was in his power to make an earlier engagement with her. From that time the defendant tried to bring about a change in her relations with the plaintiff. Up to that túne no difficulty had arisen concerning the wearing of tights. On Thursday, November 22, 1888, at the city of Philadelphia, the defendant addressed a note to the plaintiff, in which she said: 61 will leave on this coming Saturday night and rest two weeks. My voice shows wear, and as that is my first consideration, I must not trifle with it.’ At the same time she complained of having a cold, and with reference to that she said: ‘ I attribute my cold almost entirely to wearing tights, and you must arrange some other costume in place of them. I shall never appear in tights again.’ And in the same note she suggested a change of costume so great and radical as to necessitate, if an attempt had been made to carry it out, a change of the costumes of the entire company. Moreover, the proposed change involved great expense and great loss of time. This was the first distinct notice which, according to the testimony which I find worthy of belief, the plaintiff received as to the objection of the defendant to wear tights, and the defendant, without waiting for an answer or seeking an interview with the plaintiff, on Saturday, November 24, 1888, left Philadelphia and came to New York, and on the same day entered into a contract with Mr. Aronson to appear at the Casino. That contract, on its face, appears to have at first been made to commence May 6, 1889. It was subsequently altered to commence January 14, 1889. The defendant undertook to state that that alteration was not made until after the injunction had been granted in this case, but finally she conceded that it was probably before. Mr. Aronson declared that it was made at least as early as December 24, 1888. Defendant’s own communication, admitted to be in her handwriting’, dated December 24, 1888, states that she had made arrangements to play with Mr. Aronson at the Casino. That contract made it her duty to give her services gratis at rehearsals for a period of four weeks prior to the commencement of her regular engagement at the Casino, and to furnish her own tights, wigs, shoes and stockings, but costumes and boots were to be furnished to her. A further circumstance of great significance is that on December 5, 1888, the defendant wrote to the plaintiff that she was ready and willing to assume her part, in the said opera in Boston for two weeks, and to appear in tights for that period, provided the plaintiff would pay her the additional sum of $150 per week. Other incidents might be referred to, but it is not necessary to go any farther. The conclusion is unavoidable that the excuse now advanced by the defendant for the breach of her contract with the plaintiff should not be sustained.

Howe & Hummel, attorneys and of counsel, for appellant.

Vanderpoes, Cuming & Goodwin, attorneys, and Henry Thompson of counsel, for respondent.

“ Upon the whole case, the plaintiff is entitled to judgment, with costs.”

Per Curiam.

Judgment affirmed, with costs, upon the opinion of the trial judge.


source: Caselaw Access Project

license: Public Domain

text:
    MARY T. CONSTANT, et al., as Executors, etc., Respondents v. THE UNIVERSITY OF ROCHESTER, Appellant.

      Mortgage unrecorded, notice of same to subsequent mortgagees—Sufficiency of notice—Evidence necessary to establish knowledge of the existence of the former mortgage.'

    The court held in this case, that the evidence established that Mr. Deane had full knowledge of the Constant mortgage as an existing obligation at the very moment that he, on behalf of the university, took the Meehen mortgage on the Lexington avenue property. The deficiency in the proof pointed out by the court of appeals in 111 N. Y., 604, has been fully supplied on the new trial. That this knowledge on the part of Deane was, under the circumstances of this case, acquired by him in the very course of the business of the university, and consequently constituted notice to the university. The plaintiffs are, therefore, entitled to judgment even if it were held that the university parted with value for the mortgage which Deane substituted, for parting with value alone is not enough. The statute requires that it must be done on the faith of the substituted mortgage. ' This requires ignorance of the rights of prior mortgages.
    Before McAdam and Gildersleeve, JJ.

      Decided December 17, 1891.
    Appeal from a judgment rendered in favor of plaintiffs against the defendant at special term.
    The material facts in the case appearing in the opinion of the judge at special term, and the same having been referred to hy the judges of the general term in the opinion of the court, the same is set forth, as follows:
   “Freedman, J.

The testimony given hy Mr. Squires, if full effect is to be given to it, establishes conclusively that Mr. Deane had full knowledge of the Constant mortgage as an existing obligation at the very moment that he, on behalf of the university, took the Meehen mortgage on the Lexington avenue property.

Upon a careful consideration of the whole evidence, inclusive of probabilities, I could find no reason for refusing to believe the testimony of Mr. Squires, and I arrived at the conclusion that full effect should be given to it. The deficiency in the proof pointed out by the Court of Appeals in 111 N. Y., 604, has, therefore, been fully supplied.

“ This knoAvledge on the part of Deane at the very moment in question was, under the circumstances of this case, acquired by him in the very course of the business of the university, and consequently constituted notice to the university.

" The plaintiffs are, therefore, entitled to judgment, even if it were to be held that the university parted with value for the mortgage which Dean substituted. For parting with value alone is not enough. The statute requires that it must be done on the faith of the substituted mortgage. This requires ignorance of the rights of prior mortgages.

" The evidence, which is more complete than it was on the former trial, compels me to find, however, that at the time of the acceptance by Deane of the Meehen bond and mortgage on the Lexington avenue property to the university, the previous bonds and mortgages of the university on the One Hundred and Seventh street property had been satisfied, and that that property had been mortgaged to Mr. Earle’s clients the day before the university mortgage in question was executed. In accordance with this view of my duty I have made such a finding, but beyond that I shall let the facts speak for themselves.

“I have settled and signed all necessary findings of fact and conclusions of law. The requests of the defendants I have marked refused, except so far as they are covered by the findings of fact and conclusions of law settled and signed by me. If the defendants should prefer, however, to submit a revised set of requests which can be refused unqualifiedly, they may do so on notice to the plaintiffs, and I shall pass upon them hereafter.

Martin W. Cooke, attorney and of counsel, for appellant, argued:—

The questions to be specially discussed upon this argument relate to the position indicated by the opinion of the court below. In the opinion of the Court of Appeals, 111 N. Y. Rep., 604-613, it is laid down : “ The plaintiffs are bound to show by clear and satisfactory evidence that when this mortgage to the university was taken by Deane, he then had knowledge, and the fact was then present in his mind, not only that he had taken a mortgage to Constant eleven months prior thereto on the same premises, which had not been recorded, but that such mortgage was an existing and valid lien upon the premises, which had not been in any manner satisfied. If he recollected that there had been such a mortgage, but honestly believed that it was and had been satisfied then, although mistaken on that point, the university could not be charged with a knowledge of the existence of such mortgage.” The court below held that the testimony given by Mr. Squires, if full effect is to be given to it, establishes conclusively that Mr. Deane had full knowledge of the Constant mortgage as an existing obligation when he took the mortgage for defendant. The opinion indicates that this fact was found from the evidence of the conversation between Squires and Deane, on the 11th of January after the execution of the mortgage to defendant. In the opinion it appears that the justice at the trial overlooked the evidence in respect of the agreement on the 10th of January, 1884, for the mortgage on the Lexington avenue property. Squires testified that he knew previously to January 11, 1884, that the bond and mortgage in question were to be executed. He also testified that if Mr. Deane directed him not to record the mortgage in question after the receipt of the satisfaction pieces on the 10th, it was on the 11th in the conversation, showing that if Deane’s attention was called to the Constant mortgage at any time after his agency was initiated (each transaction was separate), in respect of the transaction in question, it was after the delivery of the satisfaction pieces (they were sent from Rochester on the 8th). It appears they had not been received on the 9th; receipt was acknowledged on the 10th. After the execution of the mortgage in question to the defendant, and not before his attention was called to the Constant mortgage, not after he received the satisfaction pieces and before he had parted with them, or before the mortgages for the principal sums had been executed. The evidence shows (and there is no proof to the contrary), that it was agreed and understood on the 10th January, 1884, when the satisfaction pieces were delivered that the Lexington avenue mortgages were to be executed the next day to take the place of the principal sums of the mortgages so satisfied that day, and on that day (the 10th) the interest was paid to defendant up to the 11th, and the defendant was, on that day, informed of the promised new mortgages (one of which is the mortgage in question) and also the insurance policies were promised as security for them. There can be no rational question about this, and the Court of Appeals so treated this evidence and held that the Lexington avenue mortgages were agreed to be made, and were made, in consideration of the discharge of the 107th street mortgages of like amount. This was all done, the interest paid and the mortgage for the principal sum actually executed and ready for record when the interview took place, and. the evidence of Squires, referred to above, shows that no conversation took place prior to that moment, and after the receipt of the satisfaction pieces from the university. They were actually received on the 10th of January. There is no evidence whatever in any way tending to show a present knowledge in Deane, that is during the time from the receipt of the satisfaction pieces on the 10th January and the actual execution of the mortgage in question, unless, as it may be claimed, the testimony as to the examination of the contents of the tin box and the decisions not to record the mortgages, including the Constant mortgage in question, furnishes such evidence. But it will be seen that in none of those examinations or decisions was Deane doing any act for or in behalf of the university. The Lexington avenue mortgage in question was never thought of by anybody until the 10th January, 1884, and the transaction by which the university parted with the satisfaction pieces and received the mortgage in question, was not authorized or contemplated prior to the 10th January, 1884. That was the date in which the agency or authority was initiated by which the change was made. Up to that date the university held its security on the 107th street lots absolutely and without obligation to part with it except by payment.

Judgment must be given for the plaintiffs, with costs and all allowance.”

I submit that upon the evidence above referred to, appellant successfully established the following points : (1.) The court erred in finding that Deane had knowledge of the Constant mortgage at the time of the creation of the mortgage in question to the appellant, and that it had notice through him of the plaintiff’s mortgage in connection with and as part of the transactions in which the Meehen bond and mortgage to it, were received by Mr. Deane for its account. (2.) The court erred in holding (if it did so hold) that the university did not occupy the position of mortgagee for a valuable consideration. The Court of Appeals upon the same evidence, held that it surrendered a prior mortgage and took the mortgage in question. (111 N. Y. Rep., 604, 607.)

John E. Parsons, attorney and of counsel, for respondents, argued:

I. The university, through Mr. Deane, its agent, and through his firm of Deane & Chamberlin, its attorneys, had notice of Mr. Constant’s mortgage at the time that its own mortgage was taken. The fact of Mr. Constant’s mortgage, and that it was an existing and valid lien upon the premises which had not in any manner been satisfied, was present to the minds both of Deane and of Deane & Chamberlin when the university mortgage was taken. This being so, notice to Deane and to Deane & Chamberlin was notice to the university. That Deane was the agent, and Deane & Chamberlin the attorneys of the university in mortgage investment transactions; that they were relied upon to ascertain whether property mortgaged to the university was free from liens, and so that it was within their employment to know whether or not the premises were subject to the Constant mortgage, was proved without dispute. Mr. Squires proved that from the time that the Constant mortgage was executed down to the very occasion of the execution of the Meehen university mortgage in question, the Constant mortgage, as a lien upon the premises, was continually brought to the attention of Deane and was within his knowledge. Deane gave to Mr. Squires the direction to prepare the satisfaction piece for the Constant mortgage. The only answer to this was the testimony of Deane himself. He testified that he gave the direction that the mortgage to the university should be put on the premises in question. He confirmed Mr. Squires’ evidence about going over the box of unrecorded papers and his deciding whether mortgages should or should not be recorded. He did not contradict Mr. Squires. He merely testified that he could not recollect whether there was such a conversation as Mr. Squires testified to. He confirmed Mr. Squires’ statement that the examination of the box of unrecorded mortgages took place as often as three or four times a month. But Deane himself proved that, in making the arrangement for the mortgage to the university, he took into account, and so that he had in his mind at the time the fact of the Constant mortgage. He determined that it should be satisfied, and then informed Mr. Squires. He did testify that the statement made by Mr. Squires did not usually come to him until after the day after the transaction was closed.

11. The university did not part with a valuable consideration for its mortgage in question. The Meehen One Hundred and Seventh street mortgages, which are claimed to have furnish'ed the consideration, were, with satisfaction pieces, sent to Deane on January 7, 1884. On that day they were charged to him in his account on the university ledger. It was admitted, and was found by Judge Freedman, that the One Hundred and Seventh street mortgages were actually satisfied of record on January 10, 1884. The university mortgage in question was not executed until January 11, 1884. So far as the principle of law is concerned it might just as well have been executed on January 11, 1885. From January 10,1884, when the One Hundred and Seventh street mortgages were extinguished, the situation of the university was that of a creditor. Deane owed the university the amount of the One Hundred and Seventh street mortgages. The Meehens also owed the amount. The question is whether, on account of this indebtedness, they could give the university a mortgage which, being put upon record by Deane, who had withheld from record the Constant mortgage, could thereby become superior to the Constant mortgage. It is obvious that they could not. The university lost nothing by reason of its mortgage in question. It had previously extinguished the mortgage which is claimed to have furnished the consideration. 1 R. S., 756; Young v. Guy, 87 N. Y., 457; Cary v. White, 52 Ib., 141; Page v. Waring, 76 Ib., 463, 469. It is true that Deane attempted to make out that the mortgage in question was taken in place of,the mortgage that was satisfied. Upon the trial before Judge Freedman it was clearly proved, and is found by him, that although one mortgage was proposed to be taken for the other the earlier mortgage was satisfied before the new mortgage existed.

Per Curiam.

We have examined the record, in the light of the opinion of the Court of Appeals (111 N. Y., 604), and find that the defects in the proof on the former trial have been supplied, and that the present record requires an affirmance. For these reasons and those expressed by the trial judge in his opinion, printed on pages 70 and 71, of the case, the judgment appealed from must be affirmed, with costs.


author: By the Court.—Freedman, P. J.

text:
    ELKAN BLUMENTHAL, Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

      Action for damages and injunction because of the construction and operation of a railway in front of plaintiff’s premises—Opinions of witnesses as to damages, values, etc.

    The serious and most important question raised on this appeal, arose on an exception taken on the trial to the reception of the testimony of a real estate expert called on behalf of the plaintiff, when the following proceedings took place, viz.: “Q. What, in your opinion, is the value of the easements of light, air and access appurtenant to those premises No. 1277 Third avenue, which have been taken by the construction and maintenance of the elevated road as you have observed it to be maintained and operated ? Counsel for the defendants objected to the question as improper, incompetent, irrelevant; as assuming a fact not proven in the case; as involving an improper subject of damage, as it makes an inquiry on the subject that is not a proper subject of an opinion by the witness ; that the witness is not competent or qualified to give an opinion, and as contrary to the rule laid down in the McQean case.
      The Court: The part of the question beginning with the words: ‘ As you have observed it ’ will be stricken out. Mr. Thomas : I make the same objection to the question as it stands.” The court overruled the objection and counsel for defendants excepted. Held, That this exception, taken by the defendants to this evidence, is valid and sufficient, and the determination of the trial judge, fixing the value of the easements taken by the defendants at §2,000, cannot be sustained.
    For reasons stated in the opinion of the court, a new trial was not ordered, but the court held that the rights of the defendants would be fully protected by a modification of the judgment, which was ordered.
    Before Freedman, P.J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal from judgment entered in favor of plaintiff upon the decision of a judge at special term.

      Davies, Short & Townshend, attorneys, and Julien T. Davies and Samuel Blythe Rogers of counsel, for appellants, argued:—
    I. It was error to receive the opinion of a witness as to how much more plaintiff’s premises would be worth if the railway were not there, as in the testimony of George B. Curtis, a real estate expert, for plaintiff. “ Q. What, in your opinion, is the value of the easements of light, air and access appurtenant to those premises No. 1277 Third avenue, which have been taken by the construction and maintenance of the elevated road as you have observed it to be maintained and operated? Counsel for the defendants objected to the question as improper, incompetent, irrelevant as assuming a fact not proven in the case ; as involving an improper subject of damage; as it makes an inquiry on the subject that is not a proper subject of an opinion by the witness ; that the witness is not competent or qualified to give an opinion, and as contrary to the rule laid down in the McGean case. The court: The part of the question beginning with the words : ' As you have observed it ’ will be stricken out. Mr. Thomas : I make the same objection to the question as it stands. The court overruled the objection made, and counsel for the defendants duly excepted.” This ruling was error: McGean v. Manhattan R. Co., 119 N. Y., 219; Avery v. N. Y. Central R. Co., 121 Ib., 30, 41-47; Roberts v. N. Y. El. R. Co., 40 State Rep., 454; Doyle v. Met. El. R. Co., 40 Ib., 474; Gray v. Met. El. R. Co., 40 Ib., 478. This question was much more objectionable than those held improper in the cases cited. It left the witness to form a conclusion as to the legal nature and extent of plaintiff’s easement, and the extent to which the railroad impairs it. In the third point of this brief it will be seen that this is a very difficult question of law. Nor was the witness qualified as an expert in easements.
    II. It was error for the court to refuse to find as a fact that some special benefit existed. Following are the court’s rulings upon findings proposed by defendants. " Thirty-first: The number of persons passing through Third avenue and past the premises in suit and the stores in said premises is multiplied and increased to a large extent by the presence of the elevated railroad with its stations located at Seventy-sixth street.” Refused. " Thirty-second: The facilities thus afforded for reaching the said stores in the premises in suit and the increase of traffic upon Third avenue past the stores and the large number of persons brought together at this point daily in going and returning from said stations tends to improve the stores for business purposes and increase the rental and fee value of the premises in which they are.” Refused. To these rulings, exceptions were taken. These findings being, as we assert, supported by uncontradicted evidence, a question of law as to their materiality is raised. Kennedy v. Porter, 109 N. Y., 526, 534. There can be no doubt that the findings were, if true, material in point of law. Newman
      v. Met. El. R. Co., 118 N. Y., 618. We now proceed to an examination of the evidence upon this point. Herbert H. Muxilow, who now has a store at No. 1287 Third avenue, testified as follows, speaking of the year 1872 : “ Mr. Blumenthal’s place adjoins mine. The stores, before the elevated railroad, that I now have, the same stores used to bring me in from $12 to $12.50 and $13. Now they bring me in $50 and $55 and $60. A station of the elevated railroad is near my premises; it is at Sevénty-sixth street and I am at Seventy-fourth street. I consider that station a benefit to the business that is carried on there in my premises. Considerable—that is to the public; also to the business that is carried on in my stores. I think it brings an increased traffic on Third avenue and that results in an increase of business to the stores themselves, to the business carried on there. This benefit to business by the elevated railroad applies to all stores along the line of the road on Third avenue.” This evidence was not disputed or contradicted in any way by plaintiff.
    III. It was an error to consider the annoyances caused by the running of the trains in computing the value of plaintiff’s easements. This point has just been squarely decided in defendant’s favor by the general term of the Supreme Court. Superb v. Met. El. R. Co., Law Journal for Nov. 17, 1891. Applying Forbes v. Rome, etc., R. Co., 121 N. Y., 505; Lahr v. Met. El. R. Co., 104 Ib., 268, and other cases. These defendants have as much right to emit smoke and cinders without compensation, as the Eome, Watertown & Ogdensburg Eailway has. Of course as to past acts they are liable for this as one of the incidents of the trespass. But the value of the easements is computed upon the theory that defendants will cease to be trespassers. This point is also pending undetermined before the Court of Appeals in Am. Bank Note Co. v. N. Y. El. R. Co., and Altmayer v. Same.

      Peckham v. Tyler, attorneys, and H. G. Awater of counsel, for respondent, argued :—
    The rulings of the trial court as to the admission of evidence do not require the reversal of the judgment. The only ruling of the court as to the admission of evidence which needs to be considered is the one found on page 124 of the Appeal Record. One George B. Curtis had been called as a witness for the plaintiff, and had testified that he was a real estate broker and had been in that business thirty years, and in the course of his business had had occasion to make himself familiar with the values on Third avenue and in the neighboring streets, and for the last twenty years had been familiar with the fee values on that street and in the vicinity. And that he had examined the premises in question. He was then asked the question: “ Q. What, in your opinion, is the value of the easements of light, air and access appurtenant to these premises No. 1277 Third avenue which have been taken by the construction and maintenance of the elevated railroad ? ” The words “ as you have observed it to be maintained and operated ” were at first added to the question, but these words were stricken out by the court. The question, as amended by the court, was objected to by the defendants: “As improper, incompetent, irrelevant; as assuming a fact not proven in the case ; as involving an improper subject of damage as it makes an inquiry on the subject that is not a proper subject of an opinion by the witness, that the witness is not competent and qualified to give an opinion, and as contrary to the rule laid down in the McGean case.” Analyzing this objection, it seems to resolve itself into the following: 1st. That the question was improper, incompetent and irrelevant. 2d. That it assumed a fact not proven in the case. 3d. That it involved an improper subject of damage. The reason which the counsel assigned for claiming that an . improper subject of damage was involved, to wit, as it makes an inquiry on the subject that is not a proper subject on the opinion by the witness, is only an argument and not a ground for objection. The ground of objection plainly was that proving the value of the easements of light, air and access was not the proper way of proving the damage to the plaintiff’s property by the construction and maintenance of the elevated railroad. 4th. That the witness was not competent or qualified to give an opinion. 5th. That the evidence called for was contrary to the rule laid down in the Mc-Gean case. An examination of the opinion shows that what was actually decided was that even if certain opinion evidence was inadmissible, yet the court would not reverse the judgment for such admission where the record showed to the satisfaction of the court that the defendant. could not have been prejudiced by it. The only rule, therefore, which can be considered to have been laid down by the McGean case is the rule laid down in so many other cases that the court must be satisfied upon an examination of the whole case that the appellant was prejudiced by the admission of incompetent evidence to warrant a reversal. This ground of objection may, therefore, be dismissed as either moaning nothing or as being too vague to warrant the court in taking any action on it. In the case of Lahr v. Metropolitan Elevated R. Co., 104 N. Y., 228, the Court of Appeals held that the Story case had definitely determined that an elevated road in the streets of a city operated by steam power and constructed as to form, equipment and dimensions like that described in the Story case, constituted, as against abutting owners, a taking of their property for which they were entitled to compensation. It was, therefore, at this point in the trial conclusively established before the court that the easements of light, air and access had been taken by the defendants, and it cannot be claimed that the question to the witness as to the value of these easements was in regard to a fact not proven. It might have turned out in the trial that by the decision of the court these easements would have been found to be only of nominal value, but that point had not yet been reached. The objection that the question was improper, incompetent and irrelevant was not sufficient to raise the point that the question called for inadmissible opinion evidence. Tire latest decisions of the Court of Appeals establish this point with great clearness. In the case of Kernochan v. The N. Y. Elevated E. Co. before the First Division of the Court of Appeals (decided December 1st, 1891), the Court by Andrews, J., said: “We have been inclined to hold in view of the course of trials in these cases against the elevated railway, that although the general objection of incompetency made to a question put to an expert asking his opinion might be deemed in ordinary cases sufficiently specific, nevertheless to apply that rule in these cases would be unjust, because the objection considered in connection with the course taken on these trials would not fairly lead the court or counsel to suppose that the objection was aimed at the mode of proof but rather to the competency of the fact to be proved. We think we should follow the instruction on the subject in the McGean case, 117 N.Y., 219, and hold that the objection did not raise the point that the opinion of the witness was inadmissible. An examination of the record in the Kernochan case shows that the question and objection there were in the following form: “ Q. What, in your opinion, would have been the rental value from May, 1882, to May, 1883, had there been no such elevated road in front of the property as has been described ? Counsel for defendant objected to the question as incompetent.” The objection in the Kernochan case for the purpose here was as broad as the objection taken in this case. In this case was added “improper and irrelevant.” The question was relevant enough if it was a proper method of proofj and the question was not improper if not competent. So that the objection really amounts to no more than the objection that the question was incompetent. In the case of Mortimer v. Metropolitan Elevated E. Co., decided at the same time with the Kernochan case above referred to, the objection took the following form : On the trial the plaintiff’s counsel propounded the following question to an expert witness : “ Q. To what extent, in your judgment, was the rental value of the property diminished by the structure and the passing of trains from the period from June 1,1882, down to the commencement of this suit; how much per year? Counsel for defendant objected to the question as improper, irrelevant and immaterial; as assuming that the property had been injured in that way, and as requiring the witness to separate such injury from that due to other causes. The court overruled the objection, and counsel for defendant duly excepted.” The Court of Appeals held, however, that there was no ground for reversal, and that the point that the question called for the opinion of the witness upon a matter that ought to be decided by the court was not raised. The opinion of the Kernochan and Mortimer cases are handed up herewith. But even if the point were sufficiently raised that the question called for the opinion of the witness, still the question would be admissible. The question here was simply as to the value of certain easements. These easements were property. The witness was an expert in this kind of projoerty, as it was a branch of real estate, and there was no reason why he should not be asked the value of a certain piece of real estate. Take a case where a railroad company was condemning a strip of land. An expert witness would be allowed to testify as to what, in his opinion, was the value of the piece of land which the railroad company proposed to take. Of course, this value would not necessarily be the amount the railroad company would have to pay, because, if they took part of a strip they would have to pay not only the value of the land taken, but also the damage to the land not taken. And so in this case, what the defendants must pay to the plaintiff is not simply the value of the easements but they must also pay the damage to the plaintiff’s property not taken. In the Newman case, 118 N. Y., 618, the court seemed inclined to think that the easements themselves had no value, and that the real damage was to the property not taken. If this view should prevail, of course the answers to the questions would be entirely harmless to the defendants, because it does not appear that anything has been allowed in this case for the easements as such, apart from the damage to the remaining property, or that anything was allowed for the easements alone¡ If, however, it should appear that the easements do have a value themselves, then it was not improper to ask an expert witness as to the amount of that value.
   By the Court.—Freedman, P. J.

The action was brought to restrain the defendants from maintaining and operating their elevated railway in front of plaintiff’s premises, and as incidental thereto to recover damages for loss of rental value occasioned by the past maintenance and operation of the road. The premises, known as No. 1277 Third avenue, are on the east side of Third avenue, near 73d street. The lot is 26 feet and half an inch wide and 80 feet deep, and is occupied by a five-story building used as tenements and stores. The trial judge awarded $250 for past damages from March 28, 1888 (when plaintiff became the owner of the premises) to November 13, 1890 (the date of the trial of the action), and decreed an injunction unless the defendants, within 90 days from notice of the entry of judgment, acquired by statutory proceedings the easements of the plaintiff used by the defendants for their road, or, within the same period, paid to plaintiff the sum of $2,000 which he found to be the value of such easements.

Upon an examination of the whole case, I find that the record presents but one serious question:

At the trial the following question was put to George B. Curtis, a real estate expert, called on behalf of the plaintiff, and the following proceedings took place, viz.:

Q. What, in your opinion, is the value of the easements of light, air and access appurtenant to those premises No. 1277 Third avenue, which have been taken by the construction and maintenance of the elevated road as you have observed it to be maintained and operated ?

Counsel for the defendants objected to the question as improper, incompetent, irrelevant, as assuming a fact not proven in the case, as involving an improper subject of damage, as it makes an inquiry on the subject that is not a proper subject of an opinion by the witness, that the witness is not competent or qualified to give an opinion and as contrary to the rule laid down in the McGean case.

The Court: The part of the question beginning with the words As you have observed it ” will be stricken out.

Mr. Thomas : I make the same objection to the question as it stands.

The Court 'overruled the objection and counsel for the defendants duly excepted.

A. About §3,000; I mean the impairment of fee value, etc.

The trial judge evidently was not misled by the answer, for he awarded only §2,000, and the other evidence in the case fully sustains his finding in this respect, especially when it is considered that all the stories above the stores were used for residential purposes and that the nearest station from which the stores might have derived any benefit, was more than two blocks away. Nevertheless, as one of the specific grounds of the objection was that the fact sought to be elicited was not a proper subject of an opinion by the witness, the defendants brought the case within the decisions made by the Court of Appeals in the cases of Roberts, Doyle and Gray, and the error cannot be disregarded under the doctrine of the cases of McGean, Kernochan and Mortimer. I am therefore compelled to hold that the exception taken by the defendants in this case to the piece of evidence set forth is a valid and sufficient one and that the determination of the trial judge fixing the value of the easements taken by the defendants at the sum of $2,000 cannot be sustained.

But inasmuch as no error was committed in any other respect and the evidence fully establishes that the fee damage is of so substantial a character as to entitle the plaintiff to injunctive relief and, as incidental thereto, to the recovery of past damages, I deem it to he my duty to consider whether a new trial cannot be obviated.

It has been held in the Galway case recently decided by the Court of Appeals (40 N. Y. State Rep., 145), that the provision for the payment of the fee damage, as the equivalent of the property taken, in avoidance of the injunction in this class of cases, is purely an act of grace and favor to the defendants. True, the discretion of the court, in making such a provision, is not an arbitrary or unlimited one, and whenever the court does proceed to make it, the amount must be determined upon competent and legal evidence. Roberts v. N. Y. Elevated R. R. Co., 40 N. Y. State Rep., 454; Doyle v. Metropolitan Elevated R’y Co., Ib., 474; Gray v. Same, Ib., 478.

So there is, as was said by Finch, J., in the case of the American Bank Note Co. v. The New York Elevated R. R. Co., 129 N. Y., 252, no difficulty in assuming that the alternative damages are awarded to the same extent and for the same elements as the compensation given in a special proceeding for the condemnation of land under the law of eminent domain. Such a process in each case ends in the same substantial redress. The form is different, but the result is identical. It follows, therefore, that the alternative damages of equity must be such and only such as would be given in a proceeding for the condemnation of lands for a railroad use, due regard being had to the different characteristics of the property to be taken. By referring back to Taylor v. The Metropolitan Elevated R’y Co., 50 N. Y. Sup. Ct., 311, it will be found that such was substantially my opinion even in an action brought at law for the recovery of damages.

And finally it may be said that, inasmuch as the abutting owners permitted the road to be completed and put into operation before they took any steps to enforce their rights, it would not be equitable, at this late period, to enjoin tbe operation of the road without giving to the defendants a reasonable time within which to pay.

I believe I have now fully and fairly stated all the limitations upon the discretionary power of the court to make provision for the payment of the fee damage, as the equivalent of the value of the property taken, in this class of cases, but within these limits the making of any such provision, in avoidance of the injunction, is still an act of grace and favor to the defendants. But making such provision is not the only provision which a court of equity may make as an act of grace and favor to the defendants. After having determined that the fee damage is sufficiently substantial' to entitle the plaintiff to injunctive relief, the court may grant an injunction against the maintenance and operation of the elevated railway, and, as an act of grace and favor to the defendants, stay the operation of the injunction for a reasonable time to enable the defendants to acquire title to the property taken by agreement or condemnation proceedings. As long as the time fixed is sufficient for that purpose, the defendants have no right to complain. What is sufficient time may depend upon the peculiar circumstances of each case, and upon this point as well as every other point involving the exercise of discretionary power, the defendants will not he concluded by the finding of the trial judge, but may ask to have the same reviewed by the general term. I can find nothing in the opinion of Eabl, J., in the case of Gray which conflicts with the views expressed by me, for what was said there was said on plaintiff’s appeal from an order of the general term which had reversed the judgment and ordered a new trial. That reversal had taken place because of a finding made by the trial judge that the premises would not be worth as much as they now are, had the railway and stations not been built.” It was in view of this finding and in respect of the claim of' the plaintiff that, notwithstanding said finding, the general term ought not to have reversed the whole judgment, but should have permitted that portion of the judgment to stand which awarded the injunction, that Eabl J., used the following language, viz.:—“ The injunction is so dependent upon the damages that the general term could not with propriety reverse the judgment as to damages and permit it to stand as to the injunction. But even if it could have reversed the judgment in part, it is at least generally in the discretion of the court when it finds error in part of a judgment requiring a reversal of such part, to reverse the whole judgment, and that discretion will not, certainly, except under peculiar circumstances, which do not exist here, he interfered with upon appeal to this court.”

In the pioneer of this class of cases, Story v. N. Y. Elevated R. R. Co., 90 N. Y., 122 (* 179) the opinion of the Court of Appeals delivered by Tracy, J., concludes as follows, viz.: —“ Seventh. The injunction prohibiting the continuance of the road in Front street should not be issued until the defendant has had a reasonable time after this decision to acquire the plaintiff’s property by agreement, or by proceedings to condemn the same.”

The rule thus laid down has never been disturbed, although since that time the trial courts have in most cases undertaken the laborious task of fixing the value of the property taken. But in the recent case of Galway (40 N. Y. State Rep., 145) it was expressly held by the Court of Appeals that neither party to the action can compel the trial court to determine the question.

Having now fully demonstrated that in every case, in which it appears that the fee damage is sufficiently substantial to entitle the plaintiff to injunctive relief, the injunction may be decreed without an assessment of the fee damage, provided its operation be stayed for a reasonable time to enable the defendants to acquire title to the property taken by agreement or condemnation proceedings, and that the general term, in the exercise of a sound discretion, may review and determine the question of reasonable time, and it also having been shown, that the case at bar is such a case, it only remains to be seen to what extent the judgment appealed from should be modified.

The action was begun October 5, 1888, and its commencement was notice to the defendants that the plaintiff made a claim of a substantial character. Judgment was entered April 8, 1891, and by its terms the defendants had 90 days from notice of its entry within which to acquire by statutory proceedings the property taken from the plaintiff or to pay the sum fixed by the trial judge as the value of such property. Although apparently dissatisfied with the amount thus fixed, they omitted to take any steps to have any other amount determined by condemnation proceedings. They simply endeavored to prevent the plaintiff, by every device known in legal procedure, from making any headway towards the enforcement of his rights. The same tactics are pursued by the defendants in most of the cases belonging to this class, and their number is very large. The consequences involve serious hardship to other litigants whose cases are greatly delayed, and it is with the view of protecting, if possible, the rights of these other litigants that I have made this extensive examination for the purpose of ascertaining whether a new trial could not be refused to the defendants without a violation of any of their rights.

Under all the circumstances the rights of the defendants will be fully protected by the modification of the judgment as follows, viz.:

Subdivisions II, III, IV and V of the judgment should be stricken out, and in place of them the following inserted :

“ Second. That the defendants above named be, and they hereby are, jointly and severally, restrained and enjoined from the further maintenance or operation of their elevated railroad in Third avenue in the city of New York, in front of plaintiff’s premises, which are more particularly described in the complaint herein, unless within a reasonable time, to wit, six months from notice of entry of judgment herein as modified and affirmed by the general term of this court, the defendants cause the plaintiff’s easements in Third avenue appurtenant to said premises and which have been taken or interfered with by the defendants for the purpose of their elevated road, to be condemned and taken for such railroad purposes in the manner prescribed bylaw, orto be acquired by agreement.

Third. No injunction shall issue restraining the defendants from maintaining or operating their said elevated railroad in case the defendants within six months from notice of entry of judgment herein as modified and affirmed by the general term of this court, acquire title to the easements taken or interfered with as mentioned above in either of the modes specified in the preceding subdivision.”

As thus modified the judgment appealed from should be affirmed, without costs to either party on this appeal.

McAdam and Gildersleeve, JJ., concurred.


text:
    EMMA S. A. GOVE, Appellant v. CHARLES H. STEWART, Impleaded, etc., Respondent.

      Execution against the person, order .to show cause why the same should not be vacated when it fails to specify the irregularity complained of, but such irregularity may be waived by the complainant, as in this case.

    The plaintiff waived the right to insist upon the preliminary objection, that she made upon the return of the order to show cause, when the court directed the defendant’s attorney to furnish to plaintiff’s attorney a copy of his brief showing in detail the grounds upon which the motion to vacate was based, and gave the plaintiff’s attorney three days within which to prepare and submit such affidavit and brief as he desired; and within the time plaintiff’s attorney did submit an affidavit and brief.

      Held, that, under these circumstances, a new notice of motion or order to show cause was not necessary, and the plaintiff waived her preliminary objection to the irregularity of the moving papers.
    As to the merits, it appeared on the hearing of the motion, that the case was one of great hardship to the defendant; the negligent act complained of was the act of one Sharp, a co-partner of defendant, in the business of dentistry, who was not served with the summons in the action, the defendant Stewart alone contesting plaintiff’s claim. The defendant having failed to issue an execution against the person of defendant Stewart within ten days after the return of execution against property, as required by § 572 of the Code (in fact, until more than 26 days had elapsed), the comt was bound to grant the application to vacate and set aside the execution against the person, unless reasonable cause was shown why the application should not be granted. Upon this point the case presented a question of fact upon which both parties submitted affidavits, which were, to some extent, conflicting.

      Held, that, upon the whole case, as presented, it cannot be held that the learned judge, at special term, committed a legal error in the determination of the fact against the plaintiff.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal from an order of the special term vacating and setting aside the execution issued by plaintiff against the person of the defendant.

      James M. Hunt and William R. Wilder, attorneys and of counsel, for appellant.

      Butler, Stillman & Hubbard, attorneys, and Edward Kent of counsel, for respondent.
   By the Court.—Freedman, P. J.

It may be assumed that, within the decisions of Montrait v. Hutchins, 49 How., 105, and Garner v. Mangam, 46 N. Y. Superior Ct. R., 365, the order obtained by the defendant requiring the plaintiff to show cause why the execution issued by the plaintiff against the person of the defendant should not be vacated and set aside, was irregular in not specifying the irregularity complained of, to wit, that said execution had been issued more than ten days after the return of the execution against the property of said defendant.

But I think the plaintiff waived the right to insist upon the objection. True, she raised the point by preliminary objection upon the return of the order to sbow cause, but the court thereupon instructed the attorney for the defendant to furnish to the attorney for the plaintiff a copy of his brief showing in detail the grounds upon which the motion to vacate was based, and gave to plaintiff’s attorney three days within which to prepare and submit such affidavit and brief as he might desire, and plaintiff’s attorney within the time specified did submit an affidavit and brief. Under these circumstances a new notice of motion or order to show cause was not necessary, and the plaintiff waived her preliminary objection to the irregularity of the moving papers.

As to the merits, it appeared on the motion that the case was one of great hardship to the defendant. The action was brought against the defendant and one Sharp as copartners engaged in the profession of dentistry, and was founded upon a negligent act done by Sharp, and which caused a personal injury to the plaintiff. The defendant Stewart alone was served and contested plaintiff’s claim. The plaintiff having recovered judgment and having failed to issue execution against the person of the defendant Stewart within ten days after the return of the execution against th'e property as required by § 572 of the Code, and in fact more than 26 days having elapsed, and the plaintiff’s right to issue execution against the person depending solely upon the nature of the action, the court was bound to grant the application to vacate and set aside the execution against the person, unless reasonable cause was shown by the plaintiff why the application should not be granted. Upon this point the case presented a question of fact as to which both parties submitted affidavits. To a considerable extent the affidavits were conflicting. Upon the whole case it cannot be held that the learned judge committed a legal error in the determination of the fact.

Having reached that conclusion it is not necessary to consider the questions relating to the regularity of the judgment and execution.

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

McAdam and Gildersleeve, JJ., concurred.


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    LAURA VASSAR, Appellant v. THE KNICKERBOCKER ICE COMPANY, Respondent.

      Negligence, res gestae, declarations of a servant which are a part of the same, are admissible. Time when, and place of, such declarations, discussed.

    There was no error in the admission of evidence, and the only complaint made as to the exclusion of evidence, relates to the exclusion of a question put by plaintiff’s counsel, to a witness called by the plaintiff, as to what the driver of defendant’s ice cart said to the witness in regard to the wheel running over the plaintiff. The period of time to which the question related was after the accident had happened. The driver’s act had then been entirely finished.

      Held, that any statement then made by defendant’s driver must necessarily have been only an admission of the fact in regard to an occurrence then past, and, as such, it was clearly inadmissible against the defendant. No declaration is part of the res gestae, if made after the act has been completed. It matters not whether only a minute or an hour or a day has elapsed after the occurrence had taken place. This testimony was offered as original evidence against the defendant, and, as such, was inadmissible, as ruled by the court. This being so, the court properly refused to allow plaintiff’s counsel to follow up his exception to the refusal by a general offer of what the counsel proposed to show.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal by plaintiff from a judgment, entered in favor of defendant upon the verdict of a jury, and from an order denying plaintiff’s motion for a new trial.
    Fettretch, Silknan & Seybel, attorneys, and Joseph Fettretch of counsel, for appellant.

      Maclay & Forrest, attorneys, and Albert Stickney of counsel, for respondent.
   By the Court.—Freedman, P. J.

This action was brought for the recovery of damages for personal injuries alleged to have been sustained by the plaintiff in consequence of defendant’s negligence. The defendant, in substance, interposed a general denial. Upon the trial, the questions relating to plaintiff’s contributory negligence and to the alleged negligence of the defendant, were submitted to the jury and the jury found for the defendant. The verdict is not contrary to evidence, nor against the weight of the evidence, and it should not be disturbed unless a material error was committed in the course of the trial. There was no error in the admission of evidence. The only complaint made as to the exclusion of evidence relates to the exclusion of a question put by plaintiff’s counsel to a witness called on behalf of the plaintiff as to what the driver of defendant’s ice truck said to the witness in regard to the wheel running over the plaintiff. The point of time to which the -question related, was after the accident had happened. The driver’s act was then entirely finished. Any statement then made by him must necessarily have been only an admission of a fact as to an occurrence then past, and as such it was inadmissible against the defendant. True, the declarations of a servant, while engaged, in the performance of an act in the master’s service, may bind the master, especially when the intention with which the servant has acted, is a proper subject of inquiry, but this rule applies only to such declarations as are part of the res gestae. No declaration is part of the res gestae, if made after the act has been fully completed. It then matters not whether only a minute, or an hour, or a day has elapsed. Darling v. Oswego Falls Manufg. Co., 30 Hun, 276; Luby v. Hudson River R. R. Co., 17 N. Y., 131; Utter v. Forty-second Str. R. R. Co., 6 Daly, 227; Packet Co. v. Clough, 20 Wall., 528; Vicksburg R. R. Co. v. O’Brien, 22 Reporter, 771. The question might have been admissible, if the inquiry had first been made of the driver on cross-examination with the view of bringing out some admission made by him inconsistent with the testimony which he gave on behalf of the defendant. But no such question had been put to the driver. The testimony was offered in the first instance as original evidence against the defendant, and as such it was inadmissible. This being so, the court properly refused to allow plaintiff’s counsel to- follow up the exception taken to the exclusion of the question by a general offer of what the counsel proposed to show.

All the issues were fully and fairly submitted to the jury. The charge, as delivered, the refusals to charge otherwise, and the responses made by the trial judge to some of the requests to charge, must all be taken together, and when they are thus considered as a whole, no error appears which calls for reversal.

The judgment and order should be affirmed, with costs.

McAdam and Gildersleeve, JJ., concurred.


text:
    JULIA MENIKE, Respondent v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence, when evidence of properly submitted to jury.

    The plaintiff, a woman of sixty-four years, was the only witness of the accident, her story being neither corroborated nor impeached by other evidence. She testified, in effect, that she attempted to board the rear platform of the front car of a train on defendant’s elevated railroad at the station at Eighth street and Sixth avenue. The conductor was standing on the front platform of the second car, the gate of which was closed, and was leaning out and looking down the platform toward the rear of the train. As the plaintiff set foot on the car platform, the gate of which was open, the car started, the gate was slammed against her knee, she lost her footing and fell back on the station platform, receiving certain injuries. At the time of the trial the conductor was dead.

      Held, that the case was properly submitted to the jury and that their verdict in the plaintiff’s favor should not be disturbed.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal by defendant from a judgment entered upon a verdict in favor of plaintiff and from an order denying a motion for a new trial.
    The facts are sufficiently stated in the head note.

      Davies & Rapallo, attorneys, and Brainard Tolles of counsel, for appellant.

      George J. Greenfield, attorney and of counsel, for respondent.
   By the Court.—Freedman, P. J.

This action was brought to recover damages for personal injuries sustained by the plaintiff through the negligence of defendant’s servants in attempting to get on board of one of the trains of defendant’s railway. Upon the trial the defendant produced no evidence and the case was submitted to the jury upon the testimony given by and on behalf of the plaintiff. Upon such testimony the case was clearly one for the jury. A dismissal of the complaint would have been error. All the questions as to which the trial judge was requested to charge, were submitted to the jury under a charge which fully guarded every right the defendant had. The jury were expressly instructed that they might render a verdict for the defendant although the testimony of the plaintiff was uncontradicted. Upon the whole case no exception appears of sufficient merit to call for reversal.

The judgment and ordér should be affirmed, with costs.

McAdam and Gildersleeve, JJ., concurred.


text:
    STEPHEN W. GILES, et al., Respondents v. JAMES C. FARGO, President of the Merchants’ Despatch Transportation Company, Appellant.

      Negligence of common carriers—Sill or receipt of lading, terms thereof— Owner’s risk—In the absence of any special contract the receipt for the goods constitutes the whole contract between the parties.

    This action was brought to recover damages for alleged negligence of defendant in loading and transporting 300 boxes of lemons from New York to St. Joseph, Missouri, in April, 1889. The plaintiffs claimed that the lemons were delivered to defendant in good order and sound condition, but were shipped in a close and unventilated box car that was unsuitable and improper for the purpose, and thereby the lemons rotted and decayed in the course of their transportation. A receipt given to plaintiffs by defendant on the delivery of the lemons contained the following provision: that defendant “will not be liable for injury to any articles of freight during the course of transportation occasioned by the weather, accidental delays, or natural tendency to decay;” and the further provision: “Fruits and all other perishable goods will only be taken at the owner’s risk of fracture or injury during the course of transportation, loading and unloading, unless specially agreed in writing to the contrary,” and upon the face of the receipt were stamped the words “ Owner’s Bisk.” There was some testimony, tending to establish a special contract, in regard to the transportation of the lemons, and error was claimed by the defendant in regard to the charge to the jury relative to the same, but as this point was not raised by any exception, and in point of fact the trial judge did not submit to the jury whether or not the special contract had been made, Held, that the case must be considered as if this testimony had not been given.
    The ability of the plaintiffs, as the consignors (under their contract with the consignee), to maintain the action, was a prominent question on the trial of the action. The decision of the trial judge in holding that the plaintiffs, as consignors, had sufficient title to maintain the action, is approved and confirmed on the appeal.
    Certain exceptions were taken by the defendant to the exclusion of evidence. A witness in behalf of plaintiffs testified that there was a custom in the fruit trade to ship lemons in a ventilated car in warm weather. On cross-examination he was asked the following question. Q. “Do you know, whether, as a matter of fact, that shippers are in the habit of selecting what kind of cars lemons should go in during the spring and fall, or whether the transportation companies are in the habit of using their own judgment ? ” This question was objected to by plaintiff’s counsel as irrelevant, and the objection sustained and the question excluded, and defendant excepted. The witness was then asked: Q. “Are you able to say whether during the spring and fall, during that period that intervenes between cold weather and hot weather, the various transportation companies that handle lemons are in the habit of selecting the car, using their own judgment, or whether the shippers are in the habit of giving instructions to the transportation companies ?” This question was objected to on the same ground, and the objection sustained and the question excluded, and defendant excepted. Held, that the exclusion of these questions constituted error. The facts sought to be elicited were relevant and material, and the answers to the questions, if favorable to the defendant, might have turned the scales in favor of the defendant. Held also as error. The refusal of the trial judge to permit Edwin M. Hills, one of the plaintiffs, to be cross-examined upon the point whether it is not always customary, when a ventilated car is ordered for the shipper, to put on the shipping receipt which he makes out “Ventilated Car.”
    Before Freedman, P. J., and McAdam, J.

      Decided January 11, 1892.
    Appeal from judgment entered in favor of the plaintiffs upon the verdict of a jury, and from order denying defendant’s motion for a new trial. '

      Patterson, Buell, Toucey & Whiting, attorneys, and Charles E. Patterson and Donald B. Toucey of counsel, for appellant.

      Charles Caldwell, attorney, and with Herbert Barry of counsel, for respondents.
   By the Court.—Freedman, P. J.

The action was brought to recover damages for the alleged negligence of the defendant in loading and transporting 300 Boxes of lemons consigned by the plaintiffs at the city of New York to Doniphan & Co. at St. Joseph, in the State of Missouri, in April of 1889.

The claim of the plaintiffs is that when the lemons were delivered to the defendant to be shipped, they were in good order and sound condition, but that they were shipped in a closed and unventilated box car, which was an unsuitable and improper car for that purpose, and that by reason thereof the lemons rotted and decayed in the course of their transportation.

Upon the trial it appeared that when the lemons were delivered to the defendant, a receipt therefor was given to the plaintiffs. This receipt contained the provision that the defendant will not be liable for injury to any articles of freight during the course of transportation occasioned by the weather, accidental delays, or natural tendency to decay,” and the further provision : Fruits and all other perishable goods will only be taken at the owner’s risk of fracture or injury during the course of transportation, loading- and unloading, unless specially agreed in writing to the contrary.”

Upon the face of the receipt there were stamped the words Owner’s Risk.”

It also appeared that the plaintiffs kept in their possession, and were accustomed to use, the blanks having this printed contract upon them, so that they were fully informed as to the nature of the contract. Besides this the words “ Owner’s Risk ” were specially and conspicuously stamped upon the receipt.

At the close of plaintiffs’ case, and again at the close of the whole case, the counsel for the defendant moved for a dismissal of the complaint on the ground, among others, that the contract between the parties was solely evidenced by the shipping receipt; that that contract was not violated, and that it expressly exempted the carrier from loss to fruit resulting from heating or decay. The motions were denied and defendant excepted.

Under the doctrine of Falkenau v. Fargo, 35 N. Y. Super. Ct. R., 332, affirmed 55 N. Y., 642, the receipt in question undoubtedly constituted the contract between the parties.

In the course of the trial, however, considerable testimony was allowed to be given concerning an alleged antecedent special contract. It was shown that one of the plaintiffs had a conversation with Mr. Best, an agent for the defendant, in which Mr. Best said that he would guarantee the use of one of the best ventilated cars of the defendant. Mr. Best, on behalf of the defendant, denied that such a conversation had ever taken place. On the argument of the appeal the defendant insisted that the trial judge, on submitting the case to the jury, erred in his charge relative to this so called special contract. The point is not raised by any exception in the case, and in point of fact the trial judge did not submit to the jury the question whether the special contract had or had not been made. The jury were instructed that the plaintiffs could not recover unless they had established negligence in the defendant irrespective of the contract, and that the evidence of the contract was the' shipping receipt. It also appears that no exception was taken to the admission of the plaintiffs’ testimony concerning the said alleged special contract; that no motion was made to strike out the testimony; that no request was made to charge the jury with reference to it; and that no exception was taken to that portion of the charge hi ivhich the trial judge incidentally alluded to it. Under these circumstances the claim of the defendant that error was committed in respect to the alleged special contract, must be disregarded, and the case must be treated as if the testimony bearing upon this point had not been given.

For the purposes of the appeal, therefore, the receipt above referred to constitutes the whole contract between the parties, and as that does not in clear and unmistakable terms exempt the defendant from liability for loss caused by his own negligence, he remains liable for such loss, if the evidence establishes the negligence. Magin v. Dinsmore, 56 N. Y., 168; Westcott v. Fargo, 61 Ib., 542; Mynard v. Syracuse, etc., R. R. Co., 71 Ib., 180; Holsapple v. Rome, Watertown & Ogdensburg R. R. Co., 86 Ib., 275; Nicholas v. N. Y. C. & H. R. R. R. Co., 89 Ib., 370.

Upon the question of negligence considerable testimony was given at the trial as to what are proper cars for the transportation of lemons, and it may be deemed to have been established that, by custom, lemons are shipped in winter in refrigerator cars and in warm weather in ventilated cars. But it was also made to appear that in the early fall or late spring lemons are frequently shipped in closed and unventilated box cars, and that, if the consignor desires any other car at those periods of the year, he makes a special contract or gives specific directions. In the case at bar, the lemons were shipped April 29th, and consequently, with the question of the special contract out of the case and there being no evidence that specific instructions were given, the jury were at liberty to find that the defendant was left free to use his own judgment, and that, if he erred in judgment, it did not constitute negligence. Upon this branch of the case certain exceptions were taken by the defendant to the exclusion of evidence which require consideration.

Dominicus Wegman, a dealer in fruits and president of the Foreign Fruit Exchange, was called as a witness on behalf of the plaintiffs and testified that there is a custom, in the fruit trade to ship lemons in a ventilated car in warm weather. On cross-examination he was asked by defendant’s counsel:

Q. Do you know, whether, as a matter of fact, the shippers are in the habit of selecting what kind of cars lemons should go in during the spring and fall, or whether the transportation companies are in the habit of using their own judgment ?

The question was objected to by plaintiffs’ counsel as irrelevant. The objection was sustained and the question excluded, and the defendant excepted.

The witness was then asked:

Q. Are you able to say whether during the spring and fall, during that period that intervenes between cold weather and hot weather, the various transportation companies which handle lemons are in the habit of selecting the car, using their own judgment, or whether the shippers are in the habit of giving instructions to the transportation companies ?

The question was objected to by plaintiffs’ counsel on the same ground. The objection was sustained and the question excluded, and the defendant excepted.

The exclusion of these questions constituted error. The fact sought to be elicited was relevant and material, and the answers to the questions, if favorable to the defendant, might have turned the scales in favor of the defendant, for upon this point the case was, to say the least, a very close one.

Other instances of the exclusion of testimony to the prejudice of the defendant might be cited, and especially the refusal of the trial judge to permit Edwin M. Hills, one of the plaintiffs, to be cross-examined upon the point whether it is not always customary when a ventilated car is ordered for the shipper, to put on the shipping receipt which he makes out, “Ventilated Car,” but the instances already given are sufficient to show that a new trial must be had.

I regret that I had to arrive at this conclusion, because on the question on which the most stress was laid, namely, the ability of the plaintiffs to maintain the action, the learned trial judge was right in holding that, under the special circumstances of this case, the plaintiffs, as consignors, have sufficient title to maintain the action.

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

McAdam, J., concurred.


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    GEORGE T. CROMBIE, et al., Respondents v. GERTRUDE R. WALDO, Appellant.

      Action by real estate brokers to recover commissions for service alleged to have been performed for defendant in procuring a lease of her four lots of land, from her to the trustees of common schools.

    The main question on the appeal relates to the sufficiency of the evidence upon the question of performance to carry the case to the jury. If the evidence was insufficient for that purpose, then the complaint should have been dismissed or a verdict directed for the defendant. Upon full consideration of the case and the evidence on the trial, Held, that the trial judge properly refused to dismiss the complaint or to direct a verdict for the defendant, and the case was properly submitted to the jury.
    Before Freedman, P. J., and McAdam, J.

      Decided January 11, 1892.
    Appeal from judgment entered in favor of the plaintiffs upon the verdict of a jury, and from, an order denying defendant’s motion for a new trial. .

      N & M. Niles, attorneys, and Joseph N. Tuttle of counsel, for appellant, argued :—
    I. It was error for the trial judge to admit in evidence the paper offered in evidence (said agreement) as an agreement for the lease. There can be only two kinds of agreements for a lease : (a.) An agreement which in itself constitutes a letting. (6.) An agreement which does not in itself constitute a letting, but which does bind and engage to a future letting. The present agreement offered and admitted in evidence as an agreement for the lease did not bind the trustees to lease the building at any time ; but expressly reserved to them the right of declining unless their superintendent approved. The trial judge clearly believed that the paper was “ an agreement for a lease,” if it merely looked towards a letting, or was in the line of endeavor for a letting, and he clearly believed that the paper was fit matter for the jury, even if it did not hind the trustees to hire at any time. This error runs through the whole case and explains the judge’s charge. The judge expressly charged that the said paper was “an agreement for a lease,” to which defendant’s counsel duly excepted.
    II. The complaint should have been dismissed at the close of plaintiffs’ case. By the plaintiffs’ evidence it appeared that the plaintiffs were employed to procure a lease or a lessee; that the “consummation of all their efforts ” was the procuring of the execution of the agreement; that they could not have procured from said trustees a lease binding the city until the building was erected and approved ; and that the said agreement in itself expressly permitted the said trustees to decline to execute the lease if their superintendent did not approve of the building when erected. Thus it appears that no lessee ready, willing and able, had been procured, and therefore the terms of plaintiffs’ employment had not been fulfilled. In the case of Sibbald v. The Bethlehem Iron Co., 83 N. Y., 378, where the cases on this subject are reviewed, Judge Fir oh says: “ But in all the cases, under all and varying forms of expression, the fundamental and correct doctrine is, that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commissions does not accrue.” Sub-, stituting the word a lease ” for “ sale,” it is evident that the minds of Mrs. Waldo and the school trustees were nbt brought to an agreement for a lease, for (1.) The trustees were not bound to any letting, present or future. (2.) It is very doubtful whether the agreement could have been enforced by either party, on the score of indefiniteness.
    III. A verdict should have been directed for defendant at the close of the testimony on the grounds there mentioned. For, in addition to the evidence referred to in Point II. hereof, it was in evidence that the building mentioned in said agreement was never begun, and that the whole matter was dropped by the two parties to the same, and this evidence was uncontradicted.

      Langbein Bros. & Langbein, attorneys, and J. C. Julius Langbein of counsel, for respondents, argued :—
    Plaintiffs performed their duty as real estate agents and brokers under their employment by the defendant when the “ agreement to lease ” was executed by the trustees of common schools for the Twelfth Ward of the city of New York and the defendant'; they did all that the law required of them to do in order to entitle them to their commissions as brokers, and were not responsible for defendant’s failure to carry out the terms of the agreement, whether the same was beneficial to her or not. The law is well settled that in order to entitle a real estate agent or broker to commissions he must prove three things: (1.) An employment as broker to sell, exchange or lease. (2.) The bringing of a party who is ready, able and willing to purchase, exchange or lease upon the terms given to him by his principal, and (3.) That he was the procuring cause of the verbal or written contract of sale, exchange or lease. Barnard v. Monnot 1 Abb. Ct. App., 108; S. C., 33 How., 440; 42 N. Y. (3 Keyes), 203; Smith v. McGovern, 65 N. Y., 574; Lloyd v. Matthews, 51 Ib., 124; Sussdorf v. Schmidt, 55 Ib., 320; Jewett v. Emson, 2 Robt., 165; Stillman v. Mitchell, 2 Ib., 523, and numerous other cases. The bringing of the trustees to the defendant by the plaintiffs as her brokers, and that the plaintiffs as such brokers procured the execution of the said paper, or “ agreement to lease,” is admitted. The plaintiffs were therefore entitled to some commission, because the law always implies a promise to pay a reasonable price for services rendered at the request of another. As was well said by the general term of this court, in Ormes v. Dauchy, 45 Supr. Ct., 85, “ Their engagement was ended when they introduced the parties to each other, and the law allows them compensation for that particular service.” A broker is entitled to his commission when he has procured a purchaser for his principal, and an executory contract has been entered into, in the absence of an agreement that the broker should not be entitled to a commission until the contract was fully performed. Hodgkins v. Mead, 29 N. Y. State Rep., 671; S. C., 8 N. Y. Supp., 854; Barnard v. Monnot, supra; Bach v. Emerich, 3 J. & S., 548. It matters not whether what a broker has done in effecting the sale of property proves beneficial to the party who has employed him or not; if he has performed what he undertook to do, he is entitled to his commissions. Holly v. Gosling, 3 E. D. Smith,
      262; Van Lieu v. Byrnes, 1 Hilt., 133. Ancl the fact that the contract was not performed between the parties does not affect the broker’s right to recover his commissions. Smith v. Smith, 1 Sweeny, 552; Bach v. Emerich, supra; Simonson v. Kissick, 4 Daly, 143; Glentworth v. Luther, 21 Barb., 145. It is not essential to entitle a broker to his commission, that he should have procured a purchaser upon the precise terms named by the principal at the time of the employment, if, through the instrumentality of the broker the buyer and seller meet and negotiations are thus open between them, which continuing without withdrawal by either party therefrom culminate in a contract of sale, though for a less sum than that originally demanded, and upon terms deviating from those first fixed by the principal, the broker has earned his commission. Levy v. Coogan, N. Y. Com. Pleas., Gen’l Term, April, 1890, not yet reported; Dexter v. Campbell, 137 Mass., 198; Pantvin v. Curian, 13 Nebraska, 302, and numerous other cases ; in fact this is elementary law.
   By the Court.—Freedman, P. J.

This action was brought by the plaintiffs as real estate brokers to recover compensation for services alleged to have been performed for defendant in pursuance of a certain employment. All questions relating to the fact of the employment, the nature and terms of the employment, the performance of the contract of employment, and the rate of compensation, were submitted to the jury. The verdict was for the plaintiffs, and it should not be disturbed unless there was some error in the course of the trial which calls for reversal. There are numerous exceptions to the admission of evidence, the refusal to dismiss, the refusal to direct a verdict for the defendant, to the charge and the refusals to charge otherwise, but, on examination, they all appear, in so far as they involve any substantial point whatever, to relate to the same question, namely, the sufficiency of the evidence upon the question of performance to carry the case to-the jury. If the evidence was insufficient for that purpose, the complaint should have been dismissed or a verdict directed for the defendant.

The complaint alleged an employment to procure a party or parties to lease the four lots of land of the defendant.

The answer admitted that plaintiffs applied to defendant for authority to offer on her behalf to the trustees of common schools for the Twelfth Ward of the city of New York, to lease to them the said lots upon some arrangement under which the defendant was to put up a building thereon, and that the defendant consented thereto.

Upon the trial the defendant admitted that plaintiffs were employed by her to procure a lease, and that they did procure the execution of the paper marked “plaintiffs’ exhibit No. 4 of May 7th, 1891,” and upon this appeal the counsel for the defendant, in his brief, expressly waives the point that the defendant was induced by false representations to sign the said paper, and also the further point that the plaintiffs impeded and delayed the defendant from beginning work on said building.

The paper referred to is an agreement executed under seal between the defendant as party of the first part, and the trustees of common schools for the Twelfth Ward of the city of New York, parties of the second part. It provides first for the erection, by the party of the first part, on the lots in question, of a building in accordance with certain plans to be approved by the superintendent of school buildings, and then concludes as follows, viz:

“ And the said party of the first part, for the consideration aforesaid, hereby further agrees that when the said building shall be so completed and approved of by the said superintendent of school buildings, she will then make and execute a lease to the said parties of the second part, of the said building and lots of land, for the term of ten years, from the time of such completion and approval, and at annual rent therefor, to commence from that time, of eight thousand dollars and taxes, with the privilege to said parties of the second part of a renewal of said lease for an additional term of ten years, at the same annual rent and taxes, said lease and renewal to contain the usual fire clause.

“ And the said parties of the second part, for and in consideration of the foregoing agreement of the said party of the first part, hereby agree that if the said budding is so erected and completed, as above mentioned, and is approved of by the said superintendent of school buildings, they will then, on their part, execute the said lease.

“ In witness whereof, etc., etc.”

It thus appears that the plaintiffs, by their efforts, brought the parties together; that they procured a lessee ready and willing to take the premises as they had undertaken to do ; and that the meeting of the parties resulted in the execution of a contract under seal for the leasing of the premises. That was all the plaintiffs could do as brokers.

It was no part of their duty as brokers to see that the defendant put up the building or complied with the terms of the contract on her part, and hence the subsequent inability of the defendant to put up the building and the recission of the contract by the mutual consent of the parties in consequence of such inability, cannot be charged against the plaintiffs in the absence of an express agreement to the effect that they should have no compensation unless the contract between the parties was fully performed. Hodgkins v. Mead, 29 N. Y. State Rep., 671; Bach v. Emerich, 35 N. Y. Superior Ct. R., 548; Simonson v. Kissick, 4 Daly, 143; Glentworth v. Luther, 21 Barb., 145; Barnard v. Monnot, 1 Abb. Ct. App., 108.

There having been no express agreement in this case that the plaintiff should have no compensation unless the contract between the defendant and the trustees was fully carried out, the trial judge properly refused to dismiss the complaint or to direct a verdict for the defendant, and the case was properly submitted to the jury.

The record discloses no exception which is tenable.

The judgment and order should be affirmed, with costs.

McAdam, J., concurred.


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    THOMAS G. PATTERSON, Appellant v. WILLIAM McILROY, Respondent.

      Assault—Request to charge, when too broad in view of surrounding circumstances.

    In an action to recover damages for assault it was shown on the trial that defendant called on plaintiff at his office for the purpose of adjusting an . account owed hyplaintiff to defendant’s firm. A dispute arose between them and plaintiff ordered defendant out of his office. Defendant started to leave, when, as he testified, plaintiff followed and struck or pushed him. Defendant then returned and committed the acts claimed to amount to an assault. The jury' rendered a verdict for defendant. Plaintiff’s motion for a new trial was denied. He appealed from the judgment entered, but omitted in his notice of appeal to specify the order denying the motion for a new trial. Held, that no questions of fact on the trial were open for review.
    The trial judge charged : “ If the plaintiff put his hands upon the defendant the defendant had a right to resist, and to use such force as would prevent the plaintiff from inflicting injury upon him.” Held, no error.
    Upon plaintiff’s request the judge refused to charge, “as matter of law, that the premises being the premises of the plaintiff, when he ordered the defendant to leave, it was his duty to do so, and that upon his failure to do so the plaintiff had a right to use the necessary force to eject him, and that in using such necessary force, if he did not use any unnecessary violence, it would give the defendant no right to assault him.” The judge also refused to charge at plaintiff’s request, “ as matter of law, that after the defendant was ordered by the plaintiff to leave the premises and had left through the private door he had no right to return.” E.eld, no error, that in view of the testimony given hy defendant the requests were too broad.
    Before Freedman, P. J., and McAdam, J.

      Decided January 11, 1892.
    Appeal from judgment entered in favor of defendant upon the verdict of a jury. The facts are sufficiently stated in the head note.

      Palmer & Boothby, for appellant.

      Howe & Hummel, for respondent.
   By the Court.—Freedman, P. J.

The appeal being the judgment only, the questions of fact are not open for review. The action was brought to recover damages for an assault alleged to have been committed by the defendant upon the plaintiff. The issues were submitted to a jury and determined by them in favor of the defendant. The errors complained of relate to the charge of the trial judge and his refusals to charge otherwise. Upon an examination of the evidence bearing upon this branch of the case, none of the exceptions appears to be tenable. In view of the testimony given by the defendant, plaintiff’s requests for unqualified instructions to the effect that, as matter of law, the defendant had no right to return to plaintiff’s private office after he had been ordered to leave it, and had started to do so, and that the plaintiff had a right to use the necessary force to eject the defendant, were too broad.

The judgment should be affirmed, with costs.

McAdam, J., concurred.