author: Dwight, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLARD PULMAN v. CHARLES K. HENION and Others, as Water Commissioners of Certain Towns.

      Braining swcmpa — chapter 372 of the Laws of 1867 is unconstitutional — taking private property for private use— a“ grievance clay ” is essential to a valid assessment— an objection to jurisdiction.

    In 1867 tlie legislature passed a special act relative to draining swamp lands in certain towns (chap. 372 of that year), which made no reference to the public health nor to any public purpose.
    Sections 13 and 15 thereof authorized the taking, without the consent of the owners, of the lands through which the ditches were to pass.
    Sections 2 to 7, inclusive, provided for an assessment, the creation of a lien and a sale “at public vendue” of the lands benefited, provided the assessment was not paid, but there was no provision for any “grievance” day upon which a person aggrieved might object to this assessment.
    In a proceeding, instituted under the provisions of this act, it was:

      Held, that the act was unconstitutional.
    That it violated the constitutional principle that private property should not be taken for private purposes without the owner’s consent.
    That in failing to provide for a “grievance day” it violated the constitutional provision that no person shall be deprived of property without due process of law. (State Const., art. 1, § 6.)
    That as the act was unconstitutional it afforded no basis for a proceeding against supervisors of towns, as ex offieio water commissioners, to compel them to act under section 25 et seq. of chapter 557, Laws of 1890.
    That an objection to jurisdiction may be taken for the first time upon an appeal.

      CeRTIobaei, upon the relation of Willard Pulman, directed to Charles K. Henion, Chester J. Hampton, Marvin Burroughs and William A. Stevenson, as water commissioners of the towns of Waterloo, Seneca Falls, Junius and Tyre, in the county of Seneca, to review their proceedings in denying the application of the relator for the repair of certain ditches in said towns.

      G. E. Zarbrrum, for the relator.

      O. A. Ha/wley, for the defendants.
   Dwight, P. J.:

The four defendants were, respectively, the supervisors and, ex officio, the water commissioners ” of the four towns mentioned in the proceeding. The latter office was created by chapter 557 of the Laws of 1890 (§ 25), and the proceedings here reviewed were taken in attempted compliance with the provisions of that act. Those proceedings were to procure the repair of certain ditches which had been constructed more than twenty years before, under the provisions of a special act of the legislature relating to the four towns mentioned therein. That act was chapter 372 of the Laws of 1867. It was entitled “An act to provide for draining certain swamp lands situated in the towns of Waterloo, Junius, Seneca Falls and Tyre, in the county of Seneca.” It appointed three persons (named) commissioners for the purposes of the act (§ 1). It made it the duty of such commissioners to cause a survey and map of the swamp and adjacent wet lands to be drained, and of the tracts of land to be benefited by such drainage (§ 2); to estimate the cost of doing the work, and to assess and apportion the same (with their fees and those of the surveyor, and other expenses) upon the owners of the lands to be benefited, in proportion to the benefit which, in the judgment of the commissioners, the owners should derive from the work contemplated (§ 3); to make and subscribe a statement of the assessments so made, containing the names of the persons and a description of the lands assessed, and the amount of each assessment, and file such map and statement in the clerk’s office of the county; and it provided that the assessments so made should be a lien upon the lands upon which they were respectively assessed (§ 4). It required the commissioners, upon the completion of such assessments, to cause a notice containing an abstract thereof, and the names of the persons assessed, to be published in two newspapers, appointing a time and place at which they, or one of them, would attend to receive such assessments / and that unless such assessments should be paid at the time and place so appointed, they would then ancl there proceed to sell the lands, in respect to which such assessments were made, at public vendue to the highest bidder (§ 5). It provided for a service of the notice above described upon the respective owners of the lands assessed, personally, or by leaving at his place of residence fourteen days, or by mail twenty-eight days, before such day of sale (§ 6). It also made it the duty of the commissioners, or one of them, to attend at the time and place specified in the notice to receive payment of the assessments, and to proceed then and there to sell any of the lands so assessed upon which the assessments were not then and there paid (§ 7).

By section 13 of the act the commissioners were empowered “ to •enter upon any lands in or about said swamp or the Black Brook outlet of said swamp for the purposes contemplated by this act; ” that is, to construct, maintain and repair ditches thereon; and by section 15 it was provided that “ any person who shall dam up, obstruct or in any way impair any ditch, drain or sluice-way made and opened in pursuance of this act * * * shall be liable to pay the persons owning or possessing any of said lands, so as aforesaid assessed for said work herein provided for, double the damages that shall be assessed by the jury for such injury.”

It was upon this extraordinary statute that the proceedings here under review were finally based. Because, though, as we have said, the method of procedure was that prescribed by the act of 1890, the reference in that act, under which jurisdiction of this proceeding is claimed for the supervisors, commissioners, is to the special act of 1867. It is found in the first of the sections added by the act of 1890 to the act of 1869 (Laws of 1869, chap 888), which, in turn, amended tlie provisions of the Bevised Statutes relating to the drainage of swamp lands. That section reads as follows: “ Sec. 25. The supervisor of each town in the State shall be the water commissioner of his town, and as such shall have charge and supervision of all the ditches and channels for the passage of water which have been or shall hereafter be constructed or improved for the purpose of draining any swamp, bog, meadow or other low and wet land in said town, pursuant to said act hereby amended, or any special act of the Legislature therefor.” And subsequent sections of the act of 1890 confer upon the commissioner, thus created, jurisdiction of proceedings for the repairs of “ any such ditch or channel,” only; that is, of any ditch or channel constructed under the act of 1869 {svprai), or any special act of the legislature therefor.

As we have seen, the ditches in question in this proceeding were constructed under the supposed authority only of the special act of 1867. If, therefore, that act was, for. any reason, invalid and void, the ditches in question are not brought within the category of the structures mentioned in the act of 1890, and the commissioners thereby created have no jurisdiction of the proceedings for their repair.

It seems very plain that the act of 1867, above abstracted, was and is void as being in violation of two fundamental principles of law, one of which is clearly implied and the other expressly formulated in the Constitution of this State. The first is the principle that private property cannot be taken for private use without the consent 'of the owner; the second that no person shall be deprived of life, liberty or property without due process of law.

The first of these principles is very fully discussed and illustrated by Judge Chables MasoN in the case of White v. White (5 Barb., 474) In his opinion he quotes the language of Judge Story in Wilkerson v. Leland (2 Peters, 657), substantially to the effect that this principle is a fundamental maxim of free government, resting in first principles, and not dependent upon express constitutional inhibition. He observes that an exception to the rule has been made by express provision of the latest Constitution of this State, in favor of private roads, when the necessity therefor and the amount of damages caused thereby shall have been first determined by a jury of freeholders. (Const., art. 1, § 7.) But he says the framers of this Constitution “ have not extended the right to take private property for private use beyond the case of opening private roads; and from the very fact that they have not, I think the inference is irresistible that they did not intend it should be.”

That the act of 1867 does violence to this principle seems very apparent from the abstract given above. Sections 13 and 15 of the act (supra), plainly authorize the talcing of private property, viz., the lands through which the ditches are to pass without the consent of the owner; and that, not only without the pretense of a public use, but expressly for the benefit of those other persons whose lands are to be improved by the work to be done. There is in the entire act no allusion to the subject of the public health, nor to any other public purpose, but there is, on the other hand, constant reference to the owners of the lands drained, as the persons to be benefited thereby. It was for want of any reference to a public use that the constitutionality of the provisions of the Revised Statutes relating to the same subject was questioned previous to 1869; and it was, no doubt, that defect which led to the amendment of that year. (White v. White, supra, at page 483; see, also, In re Draining Swamps, 5 Hun, 116; In re Ryers, 72 N. Y., 1.)

Equally clear is it, we think, that the act of 1867 does violence to the express provision of the Constitution, that no person shall be deprived of property without due process of law.' (Const., art. 1, § 6.) The provisions of the act which are repugnant to this provision of the Constitution are found in sections 2 to 7, inclusive, and are those which provide for assessing, creating a lien upon and selling, at public vendue,” the lands found by the commissioners likely to be improved by the drainage proposed,without any opportunity being given to the owners of the lands to object to the assessments made, either on the ground that the lands will not be benefited, or that the assessments are unequal and unjust. The provisions of the act in question in this respect are very extraordinary. It provides no grievance day whatever. The notice to the owners of lands assessed is not of a day when the assessment will be reviewed, but of the day upon which it must be paid, or the land will be sold then and there; ” and this is the first intimation the owner has had of any proceeding which threatens his right of property.

It is well settled that a “ grievance day ” — an opportunity to be heard in respect to the justice and correctness of a proposed assessment — is a necessary part of the due process of law for the levying of assessments on property in this State for any purpose. (Stuart v. Palmer, 74 N. Y., 183, 188; Remsen v. Wheeler, 105 id., 573; McLaughlin v. Miller, 124 id., 510; In the Matter of Union College, 41 N. Y. St. Rep., 640.) In tbe first of tbe cases cited tbe rule is distinctly declared that a law imposing an assessment for a local improvement, without notice to and a bearing, or an opportunity to be heard on tbe part of the owner of tbe property to be assessed, has tbe effect to deprive him of bis property without due process of law, and is unconstitutional,” and tbe doctrine is upheld in all the other cases.

In the two respects considered, therefore, the act of 1867 was clearly unconstitutional and void. Being So, it afforded no basis for the jurisdiction, sought to be conferred upon the commissioners created by the act of 1890, over the ditches constructed under the former act. Those commissioners were, therefore, without jurisdiction of the proceeding here under review; all their acts in entertaining such proceeding were void; their refusal to make the order and determination asked for by the relator was clearly correct, and the ruling must now be sustained, even though the objection to the jurisdiction was not taken during the proceeding, but for the first time on the review. (Burk v. Ayers, 19 Hun, 24.)

The determination of the commissioners should be confirmed.

Macombeb and Lewis, JJ., concurred.

Order and determination of the commissioners confirmed, with costs of this appeal to the defendants.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN J. SNELL, Respondent, v. ROCHESTER RAILWAY COMPANY, Appellant.

      Negligence — of a street railroad— liability for a defect not in the repair, hut in the construction of a street as formed by the cityLaws of 1884, chap. 252, see. 9.
    In an action against a street railway company, to recover for injuries sustained by a horse which slipped into a depression between its tracks, which by statute the company was bound to have and keep in permanent repair, it appeared from a stipulation of the parties that a surface drain, the grate over its opening and the depression in question, were constructed by the city several years before the accident, and had ever since remained in substantially the same condition as when first built.

      Held, that as the defect did not consist in the want of repair, but was one of original construction for which the city alone was responsible, and which the company was not at liberty to alter, the company was not liable for the accident caused thereby.

      Appeal by the defendant, the Rochester Railway Company, from a judgment of the IVIonroe County Court, entered in the clerk’s office of said county on the 31st day of December, 1891, affirming a judgment of the Municipal Court of the city of Rochester, rendered February 17, 1891, in favor of the plaintiff for $112.09 damages and for costs.

      F. W. Smith, for the appellant.

      H. J. Sullivan, for the respondent.
   Dwight, P. J.:

The action was to recover for injuries to a horse, the result of a fall caused by his stepping into a depression in the pavement of North St. Paul street in Rochester, between the rails of one of the tracks of the defendant’s road. At the bottom of the depression there was the grated opening of a lateral drain leading to a sewer, and the whole arrangement was for the purpose of receiving and carrying off the surface water from a low place in the street. After the trial the parties entered into a stipulation, which was incorporated into the return on appeal of the' Municipal Court to the County Court, as follows: “ It is hereby stipulated that the evidence given upon the trial of the above-entitled action established the fact that the surface drain, the grate over the opening of the same and the depression between the.rails of the street car tracks, * * where the accident herein complained of occurred, were constructed by the city of Rochester several years before the accident occurred, and that said drain, grate and depression have remained in substantially the same condition from the time they were constructed down to June 20, 1890,” which was the date of the accident.

We regard this stipulation as fatal to the plaintiff’s cause of action against the defendant, and, consequently, to the judgment from which this appeal is taken. By that stipulation it conclusively appears that the defect in the street complained of was not the result of the use of the street by the defendant, nor of any act on its part, nor of the omission of any duty which it owed to the public. It was a defect not of repair but of construction, for which the city alone was responsible, and which it was neither the duty nor the privilege of the defendant to remedy. The duty laid upon the defendant by the statute, in such case made and provided, was a to liave and keep ” the space between and beside its rails and tracks “ in permanent repair.” (Laws of 1884, chap. 252, § 9.) It had no authority to change the location or dimensions of the opening of the drain nor the depth or slope of the sides of the depression connected with such opening, all of which had been determined upon by the proper authorities of the city, and constructed by the city itself in accordance with such determination. As we have said, the defendant not only owed no duty to the public to improve the construction of the street determined upon and carried out by the city, but it had no authority to do so, even for its own benefit; and the evidence in the case discloses the fact that the defendant and its predecessor in the franchise had always been subjected to considerable inconvenience by reason of the faulty construction in question, which they had no authority in themselves to remedy: None of the cases cited by counsel for the plaintiff seem to us to support their contention, nor do we see how it can be supported on principle, in view of the facts established by the stipulation found in the case.

The judgment of the County Court and of the Municipal Court of Rochester should be reversed.

Macomber and Lewis, JJ., concurred.

Judgment of the County Court of Monroe county and of the Municipal Court of the city of Rochester reversed, with costs in this court and in the County Court.


text:
    FRANKLIN B. FREEMAN, Appellant, v. JOHN S. RICH and Another, Administrators of WELDON C. FREEMAN, Deceased, Respondents.

      Sale — assignment of accounts as collateral to a note, evidence thereof — statuteoffrauds— a mortgage of a chose in action need not be filed — a pledge of a chose in action.

    A merchant borrowed money of his clerk, for which he and his wife gave the clerk their note. They also executed an instrument which recited the note, and which stated that the instrument was intended as collateral security therefor, and that it was agreed that the title to all the unpaid accounts on 'the merchant’s ledger should remain in the clerk’s hands until the uote was paid, although the merchant’s books of account were never formally delivered to the clerk.

      The clerk continued in the merchant’s employment until the merchant’s death, when the claim was presented against his estate, and a reference of the claim was made under the Revised Statutes.

      Held, that the clerk was entitled to recover.
    That the transaction amounted to a sale or assignment of the accounts to the clerk so far as necessary to satisfy the note, and that it was sufficiently evidenced, by a note or memorandum, in writing,, to satisfy the statute of frauds.
    That if it were regarded as a mortgage the statute relating to filing did not apply, since the mortgage was one of choses in action, and not of goods and chattels.
    That if it were deemed to he a pledge it would not, as such, he invalid for want of delivery, a written transfer being sufficient in the case of a pledge of a mere debt.
    Appeal by the plaintiff Franklin B. Freeman from so muck of an order of the Supreme Court, entered in the office of the clerk of "Wayne county on the 16th day of March, 1892, as denied a motion to confirm the second conclusion of law in the report of a ■ referee, which conclusion gave the plaintiff judgment upon a note for $1,105.88, and directed its payment, so far as possible, from moneys collected by the defendant Rich from accounts due W. C. Freeman, deceased, and standing upon his ledger March 26, 1890.

      L. M. Norton, for the appellant.

      J. Welling, for the respondents.
   Dwight, P. J.:

The claim referred embraced several items, among which was one which arose upon a promissory note for $1,000. The decedent was a country merchant, and the plaintiff was a clerk in his store. Three months before he died the deceased borrowed $1,000 of the plaintiff, for which he gave him his promissory note, to which his wife also attached her name without professing to charge her separate estate, of which, indeed, she had none.^ The «note was accompanied by an instrument in writing in the following terms:

“ $1,000. “MaeioN, March 26th, 1890.

“ On or before January 1, after date, we promise to pay F. B. Freeman, or order, one thousand dollars.

“ Yalue received, with use.

“W. O. FREEMAN.

“Mbs. EMMA FREEMAN.

This being for collateral security for note as above described.

“And it is hereby stipulated and agreed that the title of all accounts remaining unpaid on said W. C. Freeman’s ledger shall remain in said F. B. Freeman’s hands until this note is fully paid; and if such accounts are settled by note, said F. B. Freeman has full power to take same and indorse on note, if he so desires or feels insecure, and apply its value toward the payment of this note until this note is fully paid.

“ Signed this 26th day of March, 1890.

“W. C. FREEMAN.

“ Mbs. EMMA FREEMAN.”

The same relation between the parties continued down to the time of the death of the decedent, which occurred only three months after the note and agreement were signed. The books of account were never formally delivered to the plaintiff, but from the nature of his employment it may be assumed that he had the same access to them as the deceased, and that they continued to be used in the business, by both of them until the death of the latter. At that time the plaintiff had received nothing on the accounts, but shortly afterwards the defendants, as administrators, took possession of the books and declined to give them up to the plaintiff on his demand. At the time of the trial they had collected on the accounts existing at the date of the note the sum of $1,023.66, while there was due on the note at the same time the sum of $1,105.33, and the conclusion of law of the referee, which the court at Special Term refused to confirm, was to the effect that the plaintiff was entitled to receive from the defendants the amount so collected on the accounts in question, and that the same should be indorsed on the note. 'We think the conclusion was entirely correct and that it should have been confirmed.

The contention on the part of the defendants is, that the instrument which accompanied the note was either a chattel mortgage, and so void for not being filed ; or a pledge, and so void for want of a delivei-y of the thing pledged. We do not see that it is necessary to pronounce it either the one or the other. The instrument is not artistically drawn; it is true that it declares itself to be collateral for the note described, but at the same time it declares that the title to the accounts is in the plaintiff and shall remain so until the note is paid. Now, it is apparent that it was not intended that the accounts should remain uncollected until the 1st of January, 1891, when the note was to fall due. By its terms the note was to be paid on or before the 1st of January, 1891. If in the meantime persons owing the accounts should offer payment, payment was not to be refused; and if paid, who was entitled to the money but the plaintiff, in whom title to the accounts was vested to the extént of satisfying his note ? So, too, it was expressly provided that if parties should settle their accounts by note he might, if he chose, take the notes so given and apply them on the note held by him. The transaction, therefore, seems to have been a sale or assignment of the accounts to the plaintiff to the extent of the satisfaction of his note — the avails thereof, so far as paid in cash or settled by note, to be received by the plaintiff and applied on his note. As a sale or assignment of the accounts, the transaction was evidenced by a note or memorandum in writing, subscribed by the party to be charged thereby,” which completely satisfied the requirements of the statute of frauds. (2 R. S., 136, § 3; Birdseye, 1235, § 13.)

But even if the instrument were to be regarded as a mortgage, it was not void from want of filing, because it was a mortgage of dioses in action, and the provisions of the statute in respect to filing have no application to mortgages of that character, but only to mortgages of goods and chattels. (Booth v. Kehoe, 71 N. Y., 341; Harrison v. Burlingame, 48 Hun, 212.)

So, too, if the transaction were to be denominated a pledge, it was, for a like reason, not void or ineffectual for want of a delivery of the subject of the pledge. In the case of Wilson v. Little (2 Comst., 443) it is distinctly held that incorporeal things like debts, money in stocks, etc., which cannot be manually delivered,” may yet be the proper subjects of a pledge ; and the court in that case say : There seems to be no reason why any legal or equitable interest whatever in personal property may not be pledged, provided the interest can be put, by actual delivery or by written transfer,into the hands, or within the power of the pledgee, so as to be made available to him for the satisfaction of the debt. * * * And debts and choses in action are capable, by means of a written assignment, of being conveyed in pledge.” And in Fairbanks v. Sargent (117 N. Y., 332) the court say: “ If the property consist of a thing in action the pledgee may sue upon it and collect it or receive voluntary payment of it from the debtor. The pledgee may require such payment, and the debtor cannot resist his title. To the extent of his debt the pledgee may appropriate the proceeds to his own use and hold the balance, if any, in trust for the pledgor.”

Under the doctrine of these cases it would seem clear that the plaintiff, by the transaction in question, acquired either an absolute title to these accounts to the extent of satisfying the note held by him or such a valid lien thereupon which followed them into the hands of the defendants, as administrators of the deceased, as entitled him to receive the money collected by them thereupon to the same extent.

So far as any charge of actual fraud in the transaction is concerned, there is no finding in the case)upon which such a charge can be based. It does appear that there are creditors,- other than the plaintiff, but not that the estate is insolvent or insufficient to pay all creditors in full, without resort to assets which had been turned out by the intestate in payment of or as security for an honest debt.

We think the conclusion of law of the referee, to the effect that the plaintiff is entitled to have the moneys collected by the defendants on the accounts outstanding on the 26th day of March, 1890, paid to him toward the satisfaction of his note, was well based upon the findings of fact, and that the report should have been, and should now be, in all things, confirmed and judgment directed for the plaintiff accordingly.

Maoombbe and Lewis, JJ., concurred.

So much of the order as is appealed from reversed and the report ■of the referee in all things confirmed, and judgment ordered for the plaintiff accordingly, with costs of this appeal.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES PSCHERHOFER, Appellant.

      Juror — taking stimulants before a ease has been submitted — does not vitiate the verdict — when the objection should be taken.

    The affidavits, upon a motion to set aside a verdict, tended to show that during an adjournment of the court, and before the case was submitted to the jury, one of the jurors was taken sick; that a physician prescribed champagne as a stimulant, which was then administered by the attendant in charge of the jury; that the juror exhibited no effects of intoxication, and that he took no stimulant after the case had been submitted.

      Eeld, that no cause for interfering with the verdict was shown.
    That where a juror becomes for any reason incapacitated during a trial, the attention of the court should be directed to it at the time, and not after a verdict has been rendered.
    Appeal by the defendant Charles Pscherhofer from a judgment of the Court of Sessions of Monroe county, entered in the office of the clerk of that county on the 21st day of April, 1891, convicting him of the crime of grand larceny in the first degree; and also from an order of the said court, entered in said clerk’s office July 27,1891, denying his motion for a new trial.

      A. 8. McATah, for the appellant.

      If. II. Widener, for the respondent.
   Dwight, P. J.:

A careful examination of the record discloses no ground either for reversing the judgment or for setting aside the verdict in this case. The affidavits on which the motion was made tend to show that, during an adjournment of the court, and before the submission of the case to the jury, one of the jurors was taken sick, at the hotel where they were being kept together, with symptoms of alcoholism; that a physician was called and prescribed champagne as a stimulant, and small quantities of spirits from time to time, and that the prescription was administered by the attendant who had the jury in charge. There is no evidence that the juror took any stimulant, even under the prescription, after the case was submitted and the' jury retired to deliberate on their verdict; but, on the contrary, it appears that during the deliberations of the jury his mind was clear and composed, and that he exhibited none of the effects of intoxicating liquors.

TJpon these facts no case was made for interfering with the verdict. The cases in which verdicts have been set aside for misconduct of jurors in the use of liquor are those in which the liquor has been drank — without leave of the court, or medical prescription — after the case has been submitted to the jury for their decision. (People v. Schad, 58 Hun, 571, and the cases cited.) We are not aware that a charge of misconduct of a juror, such as to vitiate a verdict, has ever been based upon the use of liquor during the trial; and it is apparent that if a juror should become from that cause, or any other, incapacitated for his duty during the progress of the trial, it would be a proper subject for the attention of the court at the time rather than after a verdict had been rendered. . There is nothing in the affidavits to show that the rights of the defendant were in any manner prejudiced by reason of the matters disclosed.

On the ease as presented by the record, we find no ground for the objections urged in respect to the indictment, the evidence or the alleged variance between the two. The larceny is charged, in separate counts, to have been accomplished by embezzlement and by false pretenses, both of which seem to have been substantially proved as alleged. It seems to us that both branches of the case might properly have been submitted to the jury; but the former of them was withdrawn by the court, and the case went to the jury on the single charge of larceny committed by means of false pretenses. That charge is stated in the indictment with commendable conciseness, and yet with sufficient fullness and circumstance to bring the case within the statutory definition of the crime. (Penal Code, § 528, sub. 1, and § 530, sub. 3.) And the evidence seems to us fully to support the charge. There was no exception taken on the trial which requires discussion, and we find no error in the record which vitiates the judgment.

The judgment and order appealed from must be affirmed.

MaoombeR and Lewis, JJ., concurred.

Judgment and order of the Court of Sessions of Monroe county appealed from affirmed, and the case remitted to that court to proceed thereon.


text:
    THE EMPIRE STATE INSURANCE COMPANY, Plaintiff, v. THE AMERICAN CENTRAL INSURANCE COMPANY, Defendant.

      Insurance — a contract of reinsurance made by a common agent of both companies, where their interests are adverse, is void.

    A firm, who were agents for the Empire State Insurance Company, and for the American Central Insurance Company, issued a policy of insurance on hehalf of the Empire State for $2,500. They were subsequently directed to reduce the risk either hyreinsurance or cancellation to $1,000, and thereupon entered the risk, to the extent of $1,500 thereof, upon their hooks as against the American Central Company.
    The reinsurance policy was not actually issued until after a loss had occurred; nor until then was the American Central Company notified by the firm of the existence of the reinsurance.
    In an action brought by the Empire State Insurance Company to recover upon this contract of reinsurance:

      Held, that it was void.
    That as the interests of the two companies were exactly adverse, it was impossible for a common agent to give to each the benefit of his undivided fidelity and devotion.
    Exceptions of the plaintiff, tbe Empire State Insurance Company, taken upon a trial had at the Monroe Circuit before the court and a jury, where a verdict was directed for the defendant, and the exceptions were directed to be heard in the first instance at General Term, judgment in the meantime being suspended.

      D. Hays, for the motion.

      I. JV. Ames, opposed.
   Dwight, P. J.:

The action was on an alleged contract of the defendant to reinsure, in part, a risk held by the plaintiff; — a contract in all respects valid and binding except for the fact that the agents of the defendant, who assumed to bind the defendant thereby, were at the same time the agents of the plaintiff and acted for the plaintiff in the same transaction. On elementary principles and controlling authority this statement must have the effect to defeat the plaintiff’s action.

It is unnecessary since the opinions of Allen, J., in Utica Insurance Company v. Toledo Insurance Company (17 Barb., 132), and of Denio, J., in the New York Central Insurance Company v. The National Protection Insurance Company (14 N. Y., 85), to rehearse the argument in favor of the application, to precisely this class of cases, of the general proposition that “ a person cannot act as the agent of both parties in the making of a contract, when he is invested with a discretion by each, and when each is entitled to the benefit of his skill and judgment.”

In order to maintain this action it was necessary to show it distinguished, by its facts, in some material respects from the cases, mentioned. We are unable to see that it is so distinguished. On the 7th of August, 1889, Straub & Morris, who were then the duly constituted agents of the plaintiff at Pittsburg, Pa., issued a policy of insurance for $2,500, in the plaintiff’s company, to the Ridgeway Lumber Company, on a quantity of lumber at Ridgeway, Pa., and duly reported the transaction to the plaintiff at Rochester, N. Y. Thereupon the plaintiff, by its secretary and through its special agent residing at Pittsburg, directed Straub & Morris to reduce the insurance on the lumber, either by cancellation or by reinsurance, to $1,000, and thereafter, on the twenty-first of September, Straub & Morris, who had, since the issuance of the original policy, become the agents of the defendant’s company, by an entry in their books, “bound the risk” to the extent .of $1,500 in the latter company. The reinsurance policy was not, in fact, issued until after the occurrence of the loss in October of the same year, and the defendant was not notified, in any manner, that the risk had been assumed in its name until after that time. Neither of these facts is material upon the question of the binding character of the contract of reinsurance in the first instance, but the latter of them is material upon the question whether there was any ratification of that contract by the defendant; and, in view of that fact, there seems to be no evidence in the case upon which a ratification could have been found.

The case, in its essential facts, seems to be strictly within the rule of the cases above cited. Straub & Morris were concededly the agents of both parties, and acted as such in a transaction requiring the exercise of judgment and discretion in behalf of both. They had issued the original policy to the Ridgeway Company for $2,500, and were immediately directed by the plaintiff to reduce the insurance to $1,000, either by cancellation or by reinsurance, presumably for the reason that, in the judgment of the managers of the plaintiff, the latter sum was all the insurance the risk would warrant. The agents were, therefore, called upon to exercise their judgment and discretion in behalf of the plaintiff as to whether the required reduction would be effected by cancellation or by reinsurance; and if by the reinsurance, then in behalf of the defendant, as to what portion of the risk could be safely assumed by the latter; and they exercised that discretion by laying upon the defendant three-fifths of the entire risk, of which the plaintiff was willing to bear only two-fifths. The interests of the two parties to the contract were directly adverse — to the extent that it was favorable to the one it was unfavorable to the other; and the case was precisely one of those in which a common agent could not give the benefit of an undivided fidelity and devotion to the interests of both.

¥e are unable to see any justness in the proposition that the contract in question was, in fact, made between several agents of the two parties, viz., by Aull, the special agent, on the part of the plaintiff, and by Straub & Morris for the defendant alone. Aull seems to us to have been the mere mouth-piece of the plaintiff to communicate to the agents Straub & Morris the direction of the plaintiff to reduce the risk taken by them for the plaintiff. Aull did not apply to Straub & Morris for reinsurance of -the plaintiff in some other company represented by them, but only communicated to them the plaintiff’s direction to reduce the risk, and, necessarily, to act as the agent of the plaintiff in so doing.

We think the case is fully covered, in principle, by the cases referred to, and the authorities upon which the decision of those cases was based.

The motion for a new trial should be denied, and judgment ordered for the defendant on the verdict.

Macomber and Lewis, JJ., concurred.

Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the verdict.


author: Per Curiam :

text:
    FRANCES E. GRISSEN, Respondent, v. RUTH L. SOUTHWORTH, as Executrix of MORTIMER M. SOUTHWORTH, Deceased, Appellant.

      Deposition — not taken by question and answer although so oi'dered — waiver of the objection.

    Section 900 of tlie Code of Civil Procedure permits a direction to a commissioner, appointed to take testimony by deposition out of the State, that he take the same by question and answer.
    The regular attorney of a -party appeared before a commissioner, acting under a commission or order which contained such a direction, when the testimony of a foreign witness was given, and although the commissioner took only the substance of the evidence the attorney did not object.
    Upon a motion subsequently made.by him to suppress the deposition:

      Deld, that the failure of the commissioner to take the evidence by question and answer was only an irregularity, which the attorney had waived by his failure to object at the time the deposition was taken.
    Appeal by tlie defendant Ruth L. Soutlrwortli, as executrix of Mortimer M. Soutbwortb, deceased, from an order of tlie Supreme Court, entered in' tlie office of tlie clerk of the county of Niagara on the 25th day of April, 1892, suppressing the deposition of a witness, Mary Lyon, heretofore taken under a commission issued in the action.

      Charles Hickey, for the appellant.

      W. H. Sanson, for the respondent.
   Per Curiam :

A motion in behalf of the defendant was made and granted for the examination of the witness named, at Ovid in the State of Michigan, upon oral questions to be administered under the direction of Byron Y. Soule, a counselor at law, as commissioner. Such examination was had and the testimony of the witness was properly returned by the commissioner and filed with the county clerk of Niagara county on the 30th day of March, 1892. On the 13th day of April, 1892, the plaintiff served a notice of motion for the twenty-second day of that month to suppress such commission, upon the ground that the testimony of the witness was not taken by question and answer, word for word, as is permitted by section 900 of the Code of Civil Procedure and as was directed by the commission itself. This section of the Code directs, among other things, that the commissioner must “ take down or cause to be taken down, * * * the substance of the witness’s testimony; unless he is directed in the commission, or the order, or required by the person appearing for either party, to insert in the deposition any or all of the questions or answers word for word.” The direction, in this instance, as contained in the commission was, that the testimony of this witness be taken by question and answer, word for word. In respect to a considerable portion of the testimony of the witness this direction was not observed; and, consequently, this motion to suppress the commission, being made within a reasonable time after the same was filed with the clerk, was properly granted, unless the irregularity was waived by the parties. It appears that, at the taking of the deposition, the plaintiff and defendant were respectively represented by counsel who conducted the examination. The counsel for the plaintiff is shown to have been employed not only for this special occasion, but that he was her general counsel, regularly employed. He, with knowledge of the manner in which the commissioner wrote the testimony, made no objection thereto, and hence, presumably, thé commissioner acted with the consent and concurrence of both parties.

¥e are, accordingly, of the opinion that the omission to object to the course pursued by the commissioner was a waiver of the direction contained in the commission. In the absence of such direction or request, made at the taking of the deposition, the usual course to be pursued by the commissioner, contemplated by the statute, was to take the testimony in a narrative form. A failure to take it by question and answer, word for word, is an irregularity only, and may be waived by the parties by proceeding before the officer in a different manner than that provided by the commission.

' It follows that the order appealed from should be reversed, and the motion denied, with costs.

Present — Dwight, P. L, and Macomber and Lewis, JJ.

Order appealed from reversed, with ten dollars costs and disbursements of appeal, and the motion denied, with ten dollars costs.


author: Macomber, J.:

text:
    SOPHIA REGINA GOETZ, Plaintiff, v. EDWARD H. BALLOU, Defendant.

      Will — construction — a life estate, followed by a devise to “ the heirs and assigns ” of the life tenant, gives a power of appointment.

    The will of Louis Goetz, by its residuary clause, gave to his wife a life estate iu his property, and thereafter devised it to his three daughters and their heirs and assigns forever. By a preceding clause he devised to a daughter certain real estate, “ to be used and enjoyed by her during the term of her natural life;” and from and immediately after her decease, the testator gave and devised the “ same to her heirs and assigns forever.”
    In an action brought to obtain a construction of this latter clause it was

      Held, that the use of the word “ assigns” amounted to a grant of a power to the daughter to dispose of the remainder.
    That the expression “to her heirs and assigns forever” constituted an absolute gift to her, notwithstanding the preceding words, which apparently gave her only a life estate.
    Submission of a controversy without action, under section 1279 of the Code of Civil Procedure, between Sophia Regina Goetz, as plaintiff, and Edward H. Ballou, as defendant.

      George OUnton and Jaimes Geranrd Smith, for the plaintiff.

      De Voe P. Ilodson, for the defendant.
   Macomber, J.:

This controversy arises over .the will of Louis Goetz, which bears date the 22d day of April, 1871, and which was admitted to probate on the 4th day of September, 1872, and duly recorded.

The portion of the will, the construction of which is sought by this submission, is contained in the third section thereof, and is as follows:

“Sec. 3. I give and devise to my daughter Sophia Regina lot number 188 containing ten acres, also lots number 189 and 197 and 202, containing together 70T9T$r acres, Also, westerly half of lot number 205, containing 16^°-^ acres, all of these lots are of the Ebenezer lands in the Town of West Seneca, to be used and enjoyed by her during the term of her natural life and from and immediately after her decease, I give and devise the same to her heirs and assigns forever.”

On September 10,1891, the plaintiff, who is unmarried and under the usual vows of nuns of the Catholic church, entered into a written contract with the defendant, whereby she agreed to convey, by good and sufficient deed, a part of the premises mentioned in this, the third subdivision of the will. She is now shown to be ready to complete her part of the agreement and has tendered a proper conveyance of the lands. The defendant is equally desirous of completing the contract on his part, provided the conveyance which he is entitled to under the agreement would give him an unimpeachable title; but he claims that the plaintiff’s interest in the lands is limited under this section of the will, and that she has no interest therein beyond a life estate, and, consequently, he denies her power to convey any title thereto beyond her life interest, and that, consequently, he is not obliged to fulfill his part of the agreement.

The question is whether or not the testator intended by his will to give to the plaintiff the fee, or, at least, the power of disposing of the fee, or only a life estate in the lands described in the third provision of the will. In our judgment, much aid is afforded by an inspection of other portions of the will in arriving at a safe conclusion upon this question, which is to be reached by ascertaining the intention of the testator as disclosed by his will. By the first section of the will other lands situated in the same town were given by the testator to his daughter Agnes, now Mrs. Krell, to be used and enjoyed by her, during the term of her natural life and from and immediately after her decease, I give the same to her heirs or their assigns forever.” By the second section the testator devised to his daughter Louise other lands in the same township, to be used and enjoyed by her during the term of her natural life, and from and immediately after her decease, I give and devise the same to her heirs and assigns forever.”

The residuary clause of the will gave a life estate to the wife, to be used and enjoyed by her during her natural life and from and immediately after her decease, I give and devise the same to my above-named three daughters and their heirs and assigns forever, to be divided equally between them, share and share alike.”

It will be observed that the provision of this will, in respect to the plaintiff, was the same as it was in respect to the testator’s daughter Louise, while in the devise by him to his daughter Agnes the gift was not “ to her heirs and. assigns,” but to “ her heirs or their assigns.”

It seems to us that the use of the word “ assigns,” in the devise to the plaintiff, amounts to a grant of a power to dispose of the remainder. The expression “to her heirs and assigns forever” must be construed as an absolute gift to her, notwithstanding the apparent words of limitation, as to life, contained in the preceding part of this section of the will. (Campbell v. Beaumont, 91 N. Y., 465.)

Judgment should be for the plaintiff.

Dwi&ht, P. J., and- Lewis, J., concurred.

Judgment ordered for the plaintiff on the submission.


author: Lewis, J.:

text:
    KATE DAVIS, as Administratrix of GRANT L. DAVIS, Deceased, Plaintiff, v. LEHIGH VALLEY RAILROAD COMPANY, Defendant.

      Negligence — stepping off a train when it is not at a station — duty of the railroad corporation to passengers— conlributoi'y negligence.

    Pursuant to tlie statute which requires a railroad train about to cross the tracks of another railroad at grade to come to a full stop, a train of the Lehigh Valley Company stopped upon a bridge belonging to that road, which was within the statutory distance of such a crossing. The train then began to move slowly on, when a passenger, although no announcement had been made to the passengers that a station had been reached, left the car, stepped off into the darkness, fell through-the bridge and was drowned.
    In an action brought against the corporation to recover the damages claimed to have resulted from its alleged negligence:

      Held, that it was not the duty of the company to warn passengers, when the train was not at a station, that they must not leave the car.
    That the act of the deceased was careless and constituted contributory negligence.
    • Exceptions of tbe plaintiff Kate Davis, as administrati’ix of Grant L. Davis, taken upon a trial had at the Cayuga Circuit before the court and a jury, at which a motion for a nonsuit was granted and the exceptions were directed to be heard in the first instance at General Term.

      Goburn (& Hunter, for the plaintiff.

      Tabor c& Brainerd, for the defendant.
   Lewis, J.:

The deceased was a passenger on defendant’s road from Weedsport to Auburn on the evening of February 19, 1890. The distance between the two places is ten miles. Befoie reaching the depot in the city of Auburn, from the north, the defendant’s road crosses a bridge which spans the Owasco outlet. It also crosses the tracks at grade of the New York Central and Hudson River Railroad Company. This grade crossing is between the bridge mentioned and the depot. The depot is about one-half mile south of this bridge by way of the railway.

The train on which the deceased was riding on the evening in question stopped, as it was required to- do by statute, before crossing the Central tracks. In coming to the halt, the car on which the deceased was riding was on the bridge. The deceased, supposing the train had arrived at the depot, went out upon the platform of the car where he had been riding and went down the steps of the car upon the westerly side of the train,' stepped off and fell into the outlet, and was drowned. The evening was very dark, so dark that the deceased was unable to see where he was stepping. There was an electric light upon the north side of the bridge and one upon the south side. They were so located as to throw light upon the surface of the bridge upon the easterly side of the train. The westerly side of the train was in the shadow. The train remained standing on the bridge about five minutes, presumably waiting for the signal to pass over the crossing mentioned.

The statute provides that “ all trains and locomotives on railroads crossing each other on the same level, shall come to a full stop before crossing, not less than two hundred nor more than eight hundred feet from said crossing, and shall then cross only when the way is clear and upon a signal to do so from a watchman stationed at the crossing.” (Chap. 329, Laws of 1884, § 5.)

The evidence tended to show that the train, before stopping upon the bridge, had been passing through thickly settled and lighted streets, and that circumstance, and the fact that the train stopped, probably led the deceased to think that he had arrived at the station.

Nothing was said or done by the hands on the train to warn passengers not to leave the train while it was thus standing upon the bridge.

The defendant’s train coming into Auburn from Weedsport usually stopped upon this bridge and waited for a signal to pass over the crossing mentioned. It sometimes stopped just north of the bridge for that purpose and passengers occasionally took advantage of the stop and alighted from the train at this point. There was a plank-walk crossing the bridge longitudinally upon its easterly side. It was constructed for the convenience of the defendant’s employees only, though the evidence tended to show that passengers sometimes used it in leaving the train. There was no walk nor railing to the bridge on the westerly side. The westerly side of a passenger car when upon the bridge extended out nearly flush with the westerly ends of the ties.

The circumstances of the defendant leaving the train and of the accident were related by Mr. Fay Cutler, a witness called by the plaintiff. lie was the only witness who testified upon the subject. He stated that he rode in company with the deceased from Weeds-port to Auburn; had been conversing with him and accompanied him out of the car on this occasion. Mr. Cutler, in describing the occurrence, testified: “ When he got out on the platform he turned around and shook hands with me. * * * He says £ Good night,’ and I says £ Good night.’ * * * It was dark; quite dark. Of course, I could see between the two cars, but to look off each way I could not see; I couldn’t see off to the west side. After doing what I have stated, Mr. Davis got off, took a step down — one step — and .got hold of the iron that is up and down on the end of the car with his right hand; he took hold of that l’ailing with his right hand; he had his grip in his left; then he stepped down, and then I said, £ Good night,’ and he said £ Good night; ’ and then he stepped down one step, took hold of the iron, and then, just then, the train started ; he stood on the bottom step as the train started ; he swung off just as I would step off, or anybody ; right off as though he was going off on the ground ; the train had just started, hadn’t gone over a foot or two ; it was moving slow; I couldn’t see anything on either side as I looked off; it was cold enough so I needed an overcoat on, and quite a chilly wind; it didn’t appear to be stormy; I could hear the wind was blowing some.”

At the close of the plaintiff’s evidence the court, on motion of the defendant, directed a nonsuit, and ordered the exceptions be heard at the General Term in the first instance.

Careful examination of this case has not disclosed to us any question of fact which should have been submitted to the jury. It was not negligence for the defendant to stop the train in the place it did on this occasion. It had a right to select the place of stopping, if within the statutory limits, and there is no complaint in that regard. It had a right to delay the train for such length of time as was necessary before crossing the Central tracks.

It cannot be successfully claimed that it is the duty of those in charge of a train to warn passengers not to attempt to leave a train when it is not at a station unless they have said or done something calculated to lead passengers to think they have arrived at the station. In the running of trains of cars exigencies frequently arise requiring them to come to a halt when not at stations. It is incumbent upon the passengers to be vigilant and attentive and not attempt to alight until they are in some way informed that their train has arrived at the station. The plaintiff failed to show the defendant guilty of negligence causing the death of the intestate. Plaintiff also failed to show the deceased free from negligence contributing to his death. The circumstances under which he left the train conclusively show him to have been guilty of surprising carelessness and thoughtlessness. Without notice that the train had arrived at the station, and in the absence of the usual lights and other evidences that they were at the station, he heedlessly stepped off of the car into the darkness, not knowing where he was going and while the car was in motion.

It must be held, we think, that under these circumstances the deceased was guilty of negligence contributing to his death. We fail to find among the cases cited by the plaintiff’s counsel any one sustaining his contention here. In the cases cited where the company was held to be liable it was made to appear that those in charge of the train had, in some manner, led the passenger to understand that he had reached the station.

The deceased was a commercial agent, accustomed to travel upon tbe railroads, and must have known that it was the custom of the railroad officials to notify passengers when they arrive at a station, and there being an absence of proof that any such announcement was made on this occasion, leaving the train as he did was a negligent act. Plaintiff failed to make a case. We find no errors in the rulings of the court at the trial.

Motion for a new trial should be denied, and judgment ordered for the defendant upon the nonsuit.

Dwight, P. J., and Macomber, J., concurred.

Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit.


text:
    MARY E. RILEY, Appellant, v. ASHBEL W. RILEY and Another, as Executors of ASHBEL W. RILEY, Deceased, Respondents.

      Statute of limitations — death of a defendant after delivery of the summons to the sheriff — subsequent action— Code of Oivil Procedure, secs. 399, 757.

    On the 31st day of March, 1882, there existed in favor of Mary E. Riley a cause of action on contract against her husband. On the 30th day of March, 1888, she caused to be delivered to the sheriff of the county where her husband then resided a summons with the intention of commencing an action upon the claim. . Before service of the summons or publication thereof, and on April 3, 1888, the husband died. On September 24,1888, Mary E. Riley made a motion to revive the action, which was denied, and no appeal was taken from the order denying it.
    In October, 1889, she brought an action against Ashbel W. Riley’s executors upon the same claim.

      Held, that the action was barred by the statute of limitations.
    That a first publication or actual service of the summons within sixty days is necessary, where a party desires to take advantage of the provisions of section 399 of the Code of Oivil Procedure relative to a delivery of a summons to the sheriff.

      Quaere, whether section '757 of the Code of Civil Proceduie, relative to reviving actions where there is a sole defendant, and the cause of action survives, can apply to a case where a summons, in which one is named as defendant, is delivered to the sheriff before the death of the defendant?
    That whether or not the plaintiff had any remedy in the first action, nothing done therein could sustain the present action brought in October, 1889.

      Appeal by the plaintiff Mary E. Riley from a judgment of the Supreme Court, entered in the office of the clerk of the county of Monroe on the' 18th day of March, 1891, dismissing the complaint, with costs, after a trial before a referee.
    On the 31st day of March, 1882, there was paid to the plaintiff’s husband, Ashbel "W. Riley, now deceased, for the plaintiff, the sum of $2,500.
    Ashbel W. Riley died on the 3d of April, 1888, never having paid the money, or any part thereof, to the plaintiff.
    On the 30th day of March, 1888, the plaintiff caused to be issued and delivered to the sheriff of Monroe county, to be served upon her husband, a summons in an action in which she was plaintiff and her husband was defendant, with the intention of commencing an action to recover the claim mentioned.
    The sheriff went to the dwelling-house of Ashbel W. Riley, in the city of Rochester, on the said thirtieth day of March, with the intention of serving the summons upon him.
    Riley was seriously sick at the time, and his physician in attendance refused to permit the service of the summons, and Riley died on the third day of April following, without service of the summons having been made upon him.
    On the 24th day of September, 1888, a motion was made at Special Term, on behalf of the plaintiff, to revive the action as against Riley’s executors. The motion was denied; and no appeal was taken from the order.
    Nothing further was done to prosecute the claim until the month of October, 1889, when this action was commenced.
    The action was duly referred and tried and the plaintiff’s- complaint was dismissed by the referee, and this appeal was taken from the judgment entered on the referee’s report.

      Walter S. Hubbell, for the appellant.

      F. I. <& J. F. Durand, for the respondents.
   Lewis, J.:

Plaintiff’s cause of action accrued when the money was paid for her to her husband March 31, 1882, and unless the running of the statute was arrested by tbe delivery of the summons to the sheriff, the statute had run against the claim before the death of General Riley. (Mills v. Mills, 115 N. Y., 80.)

The delivery of the summons to the sheriff was equivalent to the commencement of an action within the provisions of the Code limiting the time for the commencing of actions, and would have arrested the running of the statute had the conditions of section 399 of the Code of Civil Procedure been complied with, by the personal service of the summons upon the defendant sought to be charged, or by the first publication of the summons pursuant to an order for service upon him in that manner, within sixty days after the expiration of the time limited for the actual commencement of the action.

The death of General Riley made a literal compliance with these conditions impossible; and it is the contention of the plaintiff that, because of such impossibility, the delivery of the summons arrested the running of the statute, and that the plaintiff should be excused from a compliance with the conditions.

It is held in Estes v. Wilcox (67 N. Y., 264); Adsit v. Butler (87 id., 585); National Tradesmen's Bank v. Wetmore (124 id., 248), that a compliance with all the provisions of section 399 is indispensable in order to prevent the statute from running against the claim.

The plaintiff evidently took this view of the situation, as is evidenced by her attempt to revive the action against these defendants as executors. When defeated in her motion, she abandoned that proceeding, and afterward brought a new action directly against the defendant’s executors.

When General Riley died the summons was in the hands of the sheriff for service; it had an actual potential existence. General Riley was the sole defendant named. Section 757 of the Code provides that in case of the death of a sole defendant, where the cause of action survives, the court must, upon a motion, allow the action to be continued against his representative or successor in interest. Whether it can be held that General Riley was a defendant within the meaning of this section, before the service of the summons upon him, may be doubted; but it must be held, we think, that the only means of relief the plaintiff had, if she had any, lay in the continuance of the proceeding to revive the action.

The action in which the attempted service was made must in some manner have been continued to avail the plaintiff anything in arresting the running statute. Section 399 expressly provides that, in order to entitle a plaintiff to the benefit of the section, the delivery of the summons to an officer must be followed by the personal service upon the defendant, or by the publication of the summons.

It was held in Clare v. Lockard (122 N. Y., 263) that a substituted service within the sixty days is equivalent to the personal service or publication of the summons within the meaning of section 399.

It was held in the case of Palmer v. Ensign by the Superior Court of Buffalo, opinion of the court by Judge James M. Smith, that when a defendant dies after the delivery of the summons to the sheriff, and before it is served on the defendant, the action may be continued against his personal representatives. A synopsis of his opinion may be found in the 19th Albany Law Journal, 399.

The casein 124 New York (supra), to which our attention is called by the appellant, is not an authority for the plaintiff. It has no application to an action at law.

"We see no way to give the plaintiff relief, and the judgment appealed from should be affirmed.

Dwight, P. J., and Macombeb, J., concurred.

Judgment appealed from affirmed.


text:
    COMMERCIAL NATIONAL BANK, of Peoria, Illinois, Appellant, v. EDMUND K. TAYLOR, Respondent, Impleaded with Others, Defendants.

      Joint debtoi's in an action in tort for a liquidated demand — when a composition with one does not discharge the others — contribution.
    A bank brought an action against Edmund K. Taylor, Henry E. Taylor and James H. Miles, as copartners, to recover $1,058.72, the balance of the proceeds of grain sold by that firm as agents, which amount the complaint alleged that they had fraudulently misapplied and converted.
    It appeared upon the trial that the bank had, pending the action, for value, released Henry E. Taylor and James H. Miles by an instrument which stated that nothing therein contained should be in any manner construed as releasing or impairing any right of action, or right to take any proceeding then existing in favor of said bank against said Edmund K. Taylor, on account of his connection with said copartnership. Edmund K. Taylor did not participate in the alleged fraudulent transactions, and at the time the release was given the copartnership had been dissolved.
    The plaintifE was nonsuited as to Edmund K. Taylor.

      Held, that this was improper.
    That section 1942 of the Code of Civil Procedure authorized the bank to release the other defendants without also releasing the joint debtor Edmund K. Taylor.
    That the fact that the action sounded in tort did not make the debt any less a debt of a specific liquidated amount.
    That as to such a debt a creditor might settle with one joint debtor, though this would not be the case where the debt or liability was unliquidated.
    That if Edmund K. Taylor should be forced to pay more than his just proportion, he could compel contribution from the co-debtors under section 1944 of the Code of Civil Procedure.
    Appeal by tbe plaintiff, the Commercial National Bank, of Peoria, Illinois, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 26th day of May, 1891, dismissing the complaint, as against the defendant Edmund K. Taylor, upon the merits, with costs, after a trial at the Erie Circuit before the court and a jury.

      Adalbert Moot, for the appellant.

      Porter Norton, for the resjiondent.
   Lewis, J.:

The plaintiff is a national bank carrying on business in Peoria, Illinois. This action was brought against the respondent Edmund K. Taylor and Henry E. Taylor and James H. Miles, as copartners, to recover $1,058.72, the balance of the proceeds of a quantity of grain which the defendants sold for the plaintiff as agents, they agreeing to pay over the proceeds when received, which they neglected to do and fraudulently misapplied the proceeds to their own use. The form of action was for the conversion of the money and the plaintiff demanded judgment for the sum mentioned. Edmund K. Taylor answered alleging that the acts out of which the indebtedness arose were participated in by the defendants Henry E. Taylor and James H. Miles, jointly with him, with full knowledge of the commission of the acts which the plaintiff claims and charges in this complaint were a fraudulent misapplication of the plaintiffs money; and further alleged that after the commencement of the action the plaintiff, for a valuable consideration, executed and delivered to each of the defendants, Henry E. Taylor and James H. Miles, a deed of release, under seal, from the cause of action set up in the complaint.

The plaintiff’s evidence established a complete cause of action against the defendants for the amount of the claim mentioned. And it further appeared that the defendants were indebted to the plaintiff for other causes of action against them as copartners, amounting to the sum of upward of eighty thousand dollars.- The execution and delivery of the release mentioned in the defendants’ answer were proven, and, by its terms, it appeared that the plaintiff had duly released the defendants, Henry E. Taylor and James H. Miles, from all claims upon them of every name and nature. The release contained the clause that nothing herein contained shall be in any manner construed as releasing or impairing any right of action or right to take any proceeding now existing in favor of said bank against said Edmund K. Taylor, on account of his connection with said copartnership.” The copartnership of the defendants had been, prior to the execution and delivery of the release, dissolved. The plaintiff’s cause of action was never paid or satisfied by the defendants, and still exists, unless the defendant Edmund K. Taylor is released therefrom by virtue of the terms and conditions of the release aforesaid. Edmund K. Taylor did not personally participate in the transactions out of which the cause of action accrued; the same were conducted by the defendant Henry E. Taylor while the firm was in existence. At the close of the evidence the court held and decided that the cause of action set forth in the complaint, being a cause of action sounding in tort, the release of the defendants Henry E. Taylor and James H. Miles operated to release the ■defendant Edmund K. Taylor, notwithstanding the reservations attempted to be made in said release of the cause of action in the complaint set forth as against the defendant Edmund K. Taylor, and that, therefore, the plaintiff was not entitled to further maintain the action, and nonsuited the plaintiff and ruled that the plaintiff was not entitled to go to the jury because of such releases, to which ruling the plaintiff duly excepted.

Under the common law these releases, undoubtedly, would have been fatal to a recovery; and unless section 1942 of tice Code of Civil Procedure authorized the plaintiff to release the defendants Heury E. Taylor and Miles, and still retain its cause of action against the defendant Edmund K. Taylor, the nonsuit was correct. The whole paper must be considered together to arrive at the intention of the parties. The plaintiff clearly did not intend to release its entire cause of action. The agreement, in effect, was, that it would not further prosecute the released parties. It was for their benefit only. Section 1942 provides that a joint debtor may make a separate composition with his creditors; that such a composition discharges the debtor making it and him only. Such release does not impair the creditor’s right of action against any other joint debtor or his right to take any proceeding against the latter unless an intent to release or exonerate him appears affirmatively upon the face thereof. The defendants were joint debtors. They owed the debt jointly. They were jointly liable to pay it. It was contracted by them as copartners. Plaintiff could have waived the tort and brought its action upon contract. It is not apparent how the character of the indebtedness ivas altered or changed by the action being in form in tort. It was, notwithstanding the form of the action, still a claim against the defendants arising out of a partnership transaction. The money in their hands was the property of their principal. Neither the essential nature and character of the cause of action nor the relationship of the parties towards each other was extinguished or destroyed by treating it as a wrong, by instituting an action for conversion. “ The relation of debtor and creditor may arise by direct agreement, or breach of duty between the parties. The legal acceptation of a debt is a sum of money due by certain and express agreement. It is a precise sum not dependent upon any further calculation to ascertain it. A debt is properly opposed to unliquidated damages and liability for use -in the sense of an inchoate or contingent debt. (Am. and Eng. Encyl. of Law, vol. 5, pp. 143, 150, 180.) The liability of a person who obtained money from another by reason of false and fraudulent representations in the sale of a patent-right was held a debt within the meaning of that word, as used in the homestead exemption statute. (Warner v. Cammack, 37 Iowa, 642.) It is stated in the opinion of the court: “We hold that it was a debt. And this because the plaintiff in the action might have waived the tort and brought his action for money paid to the use of the defendant therein. Wherever a party has derived a pecuniary advantage from a wrong done by him, and it is competent for the person suing thereon to waive the tort and maintain his action upon the promise implied by the law, there the obligation to pay is a debt, and this regardless of the form of action in which that obligation is sought to be enforced. * * * The converse of the proposition just stated must also be true, that wherever a wrong is done, resulting in no pecuniary advantage to the wrongdoer, and where the action must be in tort, and sound only in damages, there the obligation to pay is not a debt until ascertained by judgment.” The amount of the plaintiffs claim was certain and fixed. It was $1,058.72, no more nor no less. Its amount was not affected by the form of the action. In cases where the damages are uncertain and unliquidated, determinable only by the verdict of a jury, or judgment of a court, a different rule prevails. Such claims cannot be divided nor determined before judgment. No apportionment of responsibility between the wrong-doers can be had. Each must be wholly responsible for all. Satisfaction by one is a satisfaction for all. If a creditor in such eases accepts payment of a sum of money, it cannot be then known whether he has not received payment in full of his claim, or what in law is deemed an equivalent.

But where the amount of the claim is definite and is known, and the settlement of one is not for the whole claim, but for only part, a different rule prevails. It was held in Fitzgerald v. Smith (1 Ind., 310), that where the wrong consisted in the conversion of two certain specific items of property, it was competent to settle with one on his returning one of the articles taken, and proceed afterwards against’the other. In McCrillis v. Hawes (38 Maine, 566), one hundred sticks of pine timber had been converted by the defendant and one Lewis as partners. Lewis was the principal actor and jointly liable with the defendant for the conversion. Lewis settled with the plaintiff and paid sixty dollars for his half of the damage claimed, and was thereupon released in full by the plaintiff from all further liability to him on account of the cause of action.

The court held, notwithstanding the settlement made with Lewis,as it did not appear that the settlement was for the whole trespass, but was expressly limited to a compensation for one-half of the property taken, that an action could be maintained against the joint trespasser to recover for the balance of the property. Matthews v. Chicopee Manufacturing Company (3 Robt., 712), was a case of a release of one of several joint tort feasors with a reservation of the liability against the other. Chief Justice Bobertson held that the release was not a bar to the recovery against the one not released. To the same effect is Ellis v. Esson (50 Wis., 138).

The defendant Edmund K. Taylor did not personally participate • in the fraud, and hence no difficulty arises under the doctrine of contribution. Should he be compelled to pay more than his just proportion of the debt, he can compel contribution from his co-debtors. (Code of Civil Procedure, § 1944; Cooley on Torts, 144.) If these views are correct, it follows that it was error to nonsuit the plaintiff.

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

Dwight, P. J., and Macomber, J., concurrred.

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


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS McKEON, Appellant.

      A.n attempt to escape from jail — competency of proof thereof where the defendant is held upon two distinct charges — incompetent evidence which may be prtfudicial to a-prisoner cannot be disregarded on appeal.

    Upon the trial of an indictment for rape the People were allowed to prove that the defendant had made an attempt to escape from a jail where he was confined awaiting trial. It was conceded that at this time he was also held upon a bench warrant issued upon an indictment charging him with another crime.

      Held, that the evidence was improperly admitted.
    That the effect of such testimony is to raise a presumption of guilt, but that as in this case the defendant was held upon two distinct charges his attempt to escape did not raise any presumption that he was guilty of the charge upon which he was tried rather than of the charge upon which he was merely held.

      That, in order to disregard incompetent evidence received upon a criminal trial, it must conclusively appear that its admission has not been injurious to the prisoner.
    Appeal by the defendant Thomas McKeon from a judgment of the Court of Sessions of Cayuga county, entered, after a trial before the court and a jury, in the office of the clerk of said county on the 25th day of February, 1890, adjudging him guilty of the crime of rape; and from an order, dated on the 25th day of February, 1890, refusing an arrest of the judgment and a-new trial.

      IT. Greenfield, for the appellant.

      A. P. Bieh, for the respondent.
   Dwight, P. J.:

The defendant was convicted, mainly, as was natural, on the testimony of the woman who was alleged to have been the subject of the crime. The supporting testimony was slight, but, we think, sufficient to warrant its submission to the jury. It consisted, for the most part, of testimony by other witnesses that the defendant was seen going to and away from the house of the complainant, where she- was alone,' at about the time when, as she testifies, the crime was committed, and, by one witness, of immediate complaint on the part of the complainant, accompanied by an appearance of tears ■and distress corresponding with her story of the wrong to which she had been subjected. We do not dwell upon this branch of the case because there is one exception in the record which we think must be fatal to the judgment.

The people were permitted, under the objection of the-defendant, to give evidence of an attempt on his part to escape from the jail where he was confined awaiting trial; while it was conceded by the •district attorney that he was at the same time held on a bench warrant issued on an indictment charging him with another crime — what crime is not stated. We think it was error, under these circumstances, to admit the testimony objected to. Such evidence is not of a very direct or persuasive character, at the best. It has been held competent as tending to show consciousness of guilt. (People v. Petmecky, 2 N. Y. Crim. Rep., 451.) But where the defendant is held under two distinct charges how can the fact of an attempt tO' escape be said to raise any presumption of guilt of either of the crimes charged rather than of the other? It is plain that the motive to escape may have been furnished wholly by his fear of prosecution for the other crime with which he was charged, and thus the act proved have been entirely consistent with consciousness of innocence of the crime in question. Such being the case, the evidence was clearly incompetent, and yet it may have been decidedly prejudicial to the defendant.

The rule as to the effect of the admission of incompetent evidence is well stated by Allen, J., in the case of Coleman v. The People (58 N. Y., 555). He says: “ It seems that on a criminal trial, especially where incompetent evidence is received against the accused, the judgment will be reversed, unless the error is shown, conclusively, to be innoxious. It is not enough that the court sitting in review are of the opinion that the result may, and probably would, have been the same had the objectionable evidence been excluded ”

There were other exceptions in the case which might merit attention, but, as none of the questions raised by them is likely to arise on another trial, they need not be examined here. For the error specified the judgment should be reversed and a new trial granted.

Macomber and Lewis, JJ., concurred.

Judgment and conviction of the Court of Sessions of Cayuga county appealed from reversed, and a new trial granted.


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    HANNAH SLAVEN, Respondent, v EDWARD B. GERMAIN, Appellant, Impleaded with Others, Defendants.

      Civil Damage Act — a stipulation to abide the event of another suit made in open court — evidence of damages.

    In an action brought by Hannah Slaven, under the Civil Damage Act, against Edward B. Germain and others, to recover for the loss sustained by the plaintiff by reason of the death of her husband, the case having been reached and moved for trial at the circuit, the defendants’ attorney was absent and his representative in open court entered into a stipulation, which was entered in the minutes, that the case be put over the term; that it should abide the event of an action brought by one Anna B. Hall against the same defendants, then pending at the General Term; that if that case was decided in favor of Anna B. Hall all questions of law and fact in the present case should be thereby decided in favor of this plaintiff, except the question of damages.

      Held, that the stipulation, in the absence of any proof of fraud or mistake, must be enforced.
    The case of Anna B. Hall was decided in her favor, and when the present case was tried the defendants offered to show that several weeks before his death the plaintiff’s husband fell off a canal bridge, a distance of some twelve feet; that he was taken up unconscious, with blood running from his nose and ears, and thau after that he was unable to do much of any work.
    This evidence was excluded.

      Held, that its exclusion was improper.
    That, as under the stipulation the question of damages was reserved, the evidence was properly offered to show a reduced capacity in the husband for labor and a probable abbreviation of life, and, therefore, bore directly upon the question of damages.
    Appeal by the defendant Edward B. Germain from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 27th day of June, 1891, upon a verdict for the plaintiff for $3,500, after a trial at the Monroe Circuit before the court and a jury; and also from an order, entered in said clerk’s office on the 22d day of July, 1891, denying a motion for a new trial made upon the minutes of the court; and also from an order, entered in said clerk’s office, December 18, 1891, denying a motion to vacate the judgment and for a new trial, and to set aside a stipulation of March 25, 1890.

      J. A. SUM, for the appellant.

      G. P. Decker, for the respondent.
   Dwight, P. J.:

The action was to recover, under the Civil Damage Act, for the loss sustained by the plaintiff in the death of her husband. The cause was pending, at issue, and on the calendar of the Monroe Circuit, held in March, 1890. Mr. J. A. Stull, the attorney of record for the defendant, being necessarily absent from the circuit, the defendant was represented by Mr. H. J. Thomas, as counsel. The cause being reached and moved for trial by counsel for the plaintiff, Mr. Thomas moved to put it over the term on the ground of Mr. Stull’s absence and his (Thomas’) ill health and want of preparation to conduct the trial, and the application was granted upon the tender by Mr. Thomas of a stipulation which was then made in open court. The fact of the stipulation and of the postponement of the trial was entered in the minutes of the clerk, as follows:

“ This cause, having been moved by the plaintiff’s attorney, was* ordered for trial. On stipulation it was ordered over the term, to abide the result of the case of Anna B. Hall vs. the same defendants now pending in the General Term.”

Mr. Justice Adams, who held the circuit, made the following entry in his minutes: “Cause moved to trial and stipulated by counsel in open court that the issues in this case, except the question of damage, abide the result of the action of Anna B. Hall vs. same defendants, now pending in General Term.”

And Mr. Osgoodby, the official stenographer of the court, entered the stipulation at large in his minutes, as follows:

“ It was stipulated in open court, that the issues in this case, except the qiiestion of damages, abide the result of the action of Anna B. Hall against the same defendants now pending in the General Term, and that in case that action should result in favor of the plaintiff, all the questions of fact and law in this case are thereby decided in favor of the plaintiff in this action, except the question of damages; and that in case the General Term should reverse the judgment in that case and send the case back for a new trial, this stipulation should be of no effect.”

There is no real discrepancy in these several entries. That of the clerk merely notes that the stipulation was made; that of the judge states its substance; and that of the stenographer records it in full, in the terms in which it was framed by consent of counsel on both sides. The Special Term was entirely justified by the proofs in deciding that the stipulation was, in fact, made as recorded in the minutes of the stenographer, and verified by him. Such being the stipulation, no ground of fraud, surprise or mistake is shown or suggested why the defendant should be relieved from its operation and effect. . He was represented by counsel of his own choice ; he asked for the favor of a postponement of the trial, and volunteered the stipulation as a condition of its being granted. The consideration for the stipulation had been fully rendered, and, in one respect at least, the plaintiff could not be restored to the same position as when the stipulation was accepted; her chosen counsel — earnest, zealous, full of resources and fully prepared to try her cause — had died since the postponement of the trial. But, on general principles, such stipulations — which should not be lightly made —when they are made without fraud, deceit or mistake, must be enforced. The order refusing to set aside the stipulation in this case must be affirmed.

In April, 1891, the decision of the General Term was rendered in the case of Hall v. Germain, affirming the judgment in favor of the plaintiff therein, and at the next circuit thereafter, in June, 1891, this cause was brought to trial and was tried under the stipulation above mentioned. The trial was thus necessarily in the nature of an assessment of damages. All the questions of fact and law bearing upon the liability of the defendant were held to be determined in favor of the plaintiff, and the only question open to be litigated was the extent of the pecuniary loss sustained by her in the death of her husband. Of this question, one important element was the earning capacity of the deceased at a time immediately preceding the intoxication from which his death resulted, and another was the then probable duration of his life; and both were, in large measure, dependent upon his then existing condition of physical health or disease. It was, therefore, plainly, competent for the defendant, even under the restrictions of the stipulation, to give evidence tending to show, not any immediate cause of death other than the intoxication complained of, but any other cause, either of probable incapacity for labor or of probable shortness of life. This rule, we think, was clearly violated by one or more of the rulings of the court. Thus, counsel for the defendant offered to show by two witnesses who were on the stand, that four or five weeks before his death, the plaintiff’s husband fell off from a canal bridge, a distance of some twelve feet, striking on the back of his head and shoulders, and that he was taken up unconscious, with blood running from his nose and ears; and that after that time he was unable to do any work, or much of any work; and, in connection with that evidence, to show what was the extent of the injuries received by that fall. This evidence was excluded on the objection of the plaintiff, and the defendant excepted.

¥e think this exception was well taken. The evidence certainly tended to show a reduced capacity for labor, and a probable abbreviation of life; and was thus, in 'two respects, competent on the question of the damages sustained by the plaintiff.

For this reason the judgment and order denying the motion for a new trial should be reversed and a new trial granted.

Macomber and Lewis, JJ., concurred.

Order denying defendant’s motion to set aside defendant’s stipulation affirmed; judgment and order denying motion for a new trial reversed and a new trial granted, with costs to abide the event.


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    RICHARD FORAN, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — one approaching a railroad track must wait until smoke obscuring it clears away.

    In an action for injuries, alleged to have resulted from the negligence of a railroad corporation, the plaintiff testified that when he had approached within a few feet of the railroad track there was a heavy gush of smoke which obscured the approaching train. It was not claimed that this smoke was caused by the locomotive, but it was said to have been caused by tugs in a river near the track. Except for the smoke the plaintiff, who went onto the track and was injured, could have seen the train.

      Held, that it was his duty to wait until the smoke lifted, and that his failure to do so amounted to contributory negligence.
    Appeal by the defendant, the New York Central and Hudson River Railroad Company, from an order of the Supreme Court, entered in the office of the clerk of Erie county on the 12th day of November, 1891, denying a motion for a new trial made upon a case and exceptions.
    Also an appeal from a judgment of said court, entered in said clerk’s office on the 12th day of November, 1891, upon a verdict for the plaintiff for $5,000, after a trial at the Erie Circuit, before the court and a jury.

      Charles A. Podley, for the appellant.

      Edward L. JelUnek, for the respondent.
   Macomber, J.:

The plaintiff was quite seriously injured in a collision with a locomotive operated by the defendant, while crossing the defendant’s tracks on Breckenridge street at Black Rock in the city of Buffalo, on June 13, 1889. He was at that time a teamster engaged in drawing dirt with a wagon and a team of horses, and was passing along Breckenridge street, which crosses the defendant’s tracks at right angles, with a load of dirt which weighed about two tons. A considerable grade is shown in this street from Niagara street to within a short distance of the railway tracks, but manifestly it was not such a grade that would prevent a driver, even with such a heavy load, to have complete management and control of his horses. Breckenridge street was substantially level in the approaches to the tracks, and there was even a slight rise for a few feet in going upon the first track.

There was evidence from which the jury could have intelligently found that the train was moving into the city of Buffalo at this point at a speed of thirty miles an hour, but the rapidity of the movement of the train plays no important part in this appeal, as it seems to us, because the learned justice at the trial ruled that such rate of speed was not unlawful. It is claimed by the learned counsel for the plaintiff, that as his client came down the descending grade he was unable to detect the approaching train which was coming from the north by reason of natural and artificial obstructions which obscured his view. It is shown, however, that there was a space between the building upon the corner, which well might be claimed to obstruct a driver’s view to a certain extent, of a clear twenty-two feet to the first or easternmost track of the defendant. There is evidence to the effect that a tree overhung the fence at a little distance from the corner, and some of the witnesses say that the limbs of such tree obscured the sight for six to eight or ten feet. Assuming this evidence to be reliable and to have been believed by the jury, there yet remained a space of at least fourteen feet where the driver could have seen clearly the approach of the train for a distance which would have enabled him, with the exercise of any reasonable care, to protect himself and his property from collision. It is, however, claimed in behalf of the plaintiff, that in this space, either of twenty-two feet or of fourteen feet, the vision of the plaintiff was obscured by reason of a sudden “ gush ” of smoke which came upon the ground and prevented the plaintiff from seeing the approach of the train. If this smoke, in truth, came upon the tracks in the manner described by the plaintiff, it was no fault of the defendant, because no claim is made that it came from any locomotive or works of the defendant, but, on the contrary, that it came from the tugs in the river or from a neighboring brewery.

It seems to us, from the whole of the evidence, that the plaintiff received his injuries through the careless, not to say reckless, effort which he made in passing upon the tracks of the defendant while this smoke obscured his vision. The first track which was approached by the driver was the easternmost track, and it was'the second track upon which the train was approaching. The plaintiff himself testified that he could not see on account of the smoke, and that what prevented his seeing the train was the trees and smoke. He further said, When “ I got within twelve or fourteen feet of the track, it was the smoke that obstructed my view; a heavy gush of smoke; * * * plenty light enough if it was not for the smoke; no question except for the smoke; this smoke was so dense that I could not see the malt-house a hundred yards away ; I could see may be twenty-five or thirty yards, and that was the case when I was coming down before I got to the track; this heavy gush of smoke all came down there all of a sudden; * * * I could not see more than twenty yards ahead; I could see down towards the canal where I was going with my load; I could not see along the track, the smoke was so dense; it was thick, black smoke, and that was so just before I struck the track.”

He testifies further upon this subject, and also to the effect that after he discovered the approach of the train, which was about a hundred or a hundred and fifty yards to the north, he thought he would be able to get across the tracks before the train got there, and so urged up his team and made the effort, in which he failed. Upon the case, as the testimony of the plaintiff himself has left it, it seems to us that, under the authority of Heaney v. Long Island Railway Company (112 N. Y., 122), there can be no recovery by him in this action. In the case cited it was stated in the opinion of the court, in substance, that where smoke obscured the approach of a train, it was the duty of a passer-by to wait until the smoke had lifted, so that he could see that it was safe for him to make the crossing.

It follows that the judgment and order should be reversed and a new trial granted.

Dwight, P. J., concurred; Lewis, J.. not sitting.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.