text:
    CAROLINE E. WHEELER, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Mre caused by a passing locomotive — evidence — source of fire — locomotive identified,— proof of its condition — emission, of sparks after the fire.

    In an action against a railroad company to recover for injury to property by a fire, alleged to have Been started by sparks emitted from a locomotive, evidence that it was possible for such sparks to reach the burned building, and of facts tending to show that the fire origináted from that source, is not admissible until preliminary testimony has been introduced tending to exclude the probability that the fire originated from any other source.

      Semble, that direct evidence tending to show that there was no other cause of the fire, except sparks from the locomotive, is unnecessary when the facts of the case indicate that the fire probably originated from that cause.
    The evidence in such an action showed that a fire started on the roof of a barn, near the railroad, in the middle of a summer day, a few minutes after a freight train had passed, with the wind blowing from the track towards the barn, but it did not appear that anyone saw sparks emitted from the locomotive while passing the premises, and persons were in the barn when the fire occurred:

      Meld, that it might be assumed that no fire or light would be used in the barn at that time, and that if a match had been dropped or used therein a fire origin- ■ ating therefrom would not have started in the roof, and hence that the evidence tended to show that the fire was started by the locomotive.
    That the plaintiff was entitled to have this evidence submitted to the jury, if he also produced any sufficient evidence tending to show negligence on the part of the defendant company.
    General evidence that engines on a railroad had frequently emitted sparks or dropped cinders, is not competent when the engine that caused the fire is identified, unless it is also shown that that particular engine is of similar construction, state of repair and management to those which are shown to have emitted sparks or cinders.
    In the absence of evidence that anyone saw sparks emitted from the engine, which is claimed to have started a fire, or of proof of its causing any fires or emitting any large sparks prior to the fire in question, it is incumbent on the plaintiff: to show an improper condition of the spark-arrester, or a defect in the engine that might have caused the fire.
    In such a case, where the burden rested upon the plaintiff to show that the engine ■ was out of repair, it was shown that the engine had the best known appliances to arrest sparks, and that the spark-arrester was examined and found in good repair a few days before and a few days after the fire.

      Meld, that evidence that three or four weeks after the fire spams were emitted from the engine and caused a fire, it not appearing that they were large sparks, or such, as are not emitted from an engine with the hest known appliances in-the best condition, and evidence that three days after the fire one large spark was emitted from the engine, could not properly he submitted to the jury as. evidence that the engine was out of order at the time of the fire.
    Appeal by tbe plaintiff, Caroline E. Wheeler, from a judgment, of the Supreme Court, entered in the office of the clerk of Columbia county on the 4th day of IVIay, 1892, in favor of the defendant for costs, on a nonsuit and dismissal of the complaint, ordered at the Columbia Circuit, at the close of the plaintiff’s case.
    The action was brought to recover damages from the defendant,, the Eew- York Central and Hudson River Railroad Company, as. lessee and operator of the New York, West Shore and Buffalo Railroad, for the destruction of certain buildings, the property of the plaintiff, by the negligent emission of sparks from its locomotives.

      J. Rider Cady, for the appellant.

      AsKbel Green and F. L. WesibrooJe, for the respondent.
   PutNAM, J.:

Plaintiff’s buildings were destroyed by fire on June 19, 1S90, in the afternoon, between the hours of twelve and one o’clock. Defendant’s local freight train, drawn by engine No. 82, had passed fifteen or twenty minutes before. Plaintiff’s buildings stood on the easterly-side of and very near defendant’s track, and the wind was blowing-from the west to the east. The fire started on the roof of plaintiff’s, barn towards the railroad. Some of defendant’s employees, at the time, were in the yard adjacent to the building, but it does not appear that anyone saw sparks emitted from the defendant’s engine while, passing plaintiff’s premises.

Plaintiff contends that there was evidence which should have been submitted to the jury tending to show that the fire occurred on account of the negligent emission of sparks from defendant’s said engine. The trial judge thought otherwise and nonsuited the plaintiff, deeming that there was not sufficient evidence to show that-defendant’s engine caused the fire, or that it was not properly constructed to prevent the emission of sparks.

I regard the case as a close one, and have reached a conclusion, with considerable hesitation.

It is beld that in such an action as this, and under .such circumstances,, after testimony has been produced tending to exclude the probability that the fire originated from any other source, evidence may be given showing that it was possible for the sparks from the engine to reach the burned building, and facts tending to show that the fire originated from that source and no other. (Am. and Eng. Encyl. of Law, vol. 8, pp. 7, 8, and notes; Crist v. Erie Ry. Co., 1 T. & C., 435 ; 58 N. Y., 638; Sheldon v. The Hudson R. R. R. Co., 14 id., 218 ; Field v. N. Y. C. R. R. Co., 32 id., 339; Hinds v. Barton, 25 id., 547.)

In this case it is not clear that plaintiff produced the preliminary proof held necessary by above and kindred cases. Although plaintiff’s husband and her hired man were inside the building where the fire originated on the day it occurred, neither were examined -with a view of showing that the fire could not have occurred by some act of theirs inside of the barn. It was not shown that they did not use a match witliin the building before the fire, as to light a pipe or otherwise. It was not shown that children or other persons were not within the barn previous to the fire. In fact, no direct evidence was given by plaintiff tending to show the improbability of the fire originating from some cause other than from defendant’s locomotive. But I am inclined to think that direct evidence tending to show that there was no other probable cause of the fire, except sparks from defendant’s engine, was unnecessary, when the facts of the case indicate that the fire probably originated from that cause.

The fire was in the summer time, in the middle of the day, and when several men were in the yard adjoining the building. It started, a few minutes after defendant’s train passed up the road, on the roof towards defendant’s track, the wind blowing from the direction of the railroad toward the barn. It may be assumed that on the nineteenth of -June, and between twelve and one o’clock in the. afternoon, no fire or light would be used in the barn. If a match had been dropped or used in the building, a fire originating therefrom would not have started in the roof.

I think, therefore, the evidence tending to show that the fire was started by defendant’s engine, that the plaintiff, within the authorities cited above, was entitled to have that evidence submitted to the jury if sbe also produced any sufficient evidence tending to show negligence on the part of the company. (See The Lackawanna and Bloomsbury R. R. Co. v. Doak et al., 52 Pa., 379.)

Assuming that defendant caused the fire in question, it remains to be considered whether there was testimony given that said engine ■No. 82 was not in proper condition at the time of the fire, which the trial judge should have submitted to the jury.

Defendant was not responsible for the fire if it used proper care. It had the right to run its locomotives at all times on its track, provided they were in proper condition. (Collins v. N. Y. C. and H. R. R. R. Co., 5 Hun, 506; 71 N. Y., 609.) And it was for the plaintiff to show, by evidence, the defect, if any existed, in defendant’s engine. (Cosulich v. S. O. Co., 122 N. Y., 123.)

The only direct testimony as to the condition of said machine ■ was given by the witness Pisher. He testified it was in first-class condition two or three days before the fire; that the spark-arrester ■ was then examined as it was a few days after the fire, and was •found in good repair on each occasion.

The fact that large cinders were found on defendant’s track and on plaintiff’s premises twenty-five paces therefrom at or about the ■time of the fire, does not show that the engine was not in good repair, because it is not shown that such cinders came therefrom. In this case, plaintiff has identified the engine which caused the fire. No other engine of defendant’s is shown to have passed the burned building at any time near the time of the fire. In cases 'where it is probable that some engine of a railroad company has started a,, fire, and several are shown to have passed at or about the time, evidence that engines on that road have frequently dropped ■ sparks or cinders may be competent. (Sheldon v. The Hudson R. R. R. Co., 14 N. Y., 218.)

But such evidence is not competent where the engine that caused the fire is identified, unless it is also shown that such machine is of similar construction, state of repair or management to-those which are shown to have emitted such sparks or cinders. (Gibbons v. Wis. Valley R. R. Co., 58 Wis., 335; 13 Am. and Eng. R. R. Cases, 469; Boyce v. Cheshire R. R. Co., 42 N. H., 97.)

The court cannot presume defendant negligent for using an old engine to draw its freight trains, or one in which it was difficult to keep up steam, in the absence of competent testimony showing its spark-arrester defective. We should not imagine that because an engine is not new, and is not perfect as to its capacity for generating steam, that its spark-arrester is out of order.

Defendant’s engine was shown to have the best'known appliances to prevent the emission of sparks, and, as we have shown, the only witness sworn as to its condition testified that it was in good state of repair before the fire and when examined two or three days afterwards.

We must remember that this case is not like those where the plaintiffs have been able to show, prior to a fire, that an engine has emitted large sparks or caused frequent fires. In such cases it has been held in some instances that such emission of sparks and fires was some evidence of a defective engine, the effect of which was to throw upon the company the burden of showing that its locomotives were in good condition. In this case no one saw any sparks emitted from engine No. 82 at the time of the fire, nor was there any proof of its causing any fires or emitting any large sparks prior to the fire in question. It was then incumbent on the plaintiff to show an improper condition of its spark-arrester or a defect in the engine that might cause the fire.

The only testimony offered by the plaintiff tending to show a defect in the spark-arrester of engine No. 82, that I am able to discover, was its emitting sparks on two occasions after the fire in question.

The occasion testified to by Yan Yalkenburg, when a car load of hay was burned, occurred some time after the fire, I think three or four weeks. Nor does it appear that the fire which destroyed the hay was caused by large sp arles, and not by such as are emitted from an engine with the best known appliances, in the best condition. The witness, Lampman, testified to another occasion, not as suggested by plaintiff’s counsel on June twentieth, the day after the fire, but about the twentieth of June — the twentieth or the twenty-second, he is not positive which. He says that a large coal of fire was then emitted from the engine and fell into his wagon three rods distant, setting fire to the straw.

Plaintiff’s contention is that this large spark, described by Lamp-man, could not have been emitted through a spark-arrester in proper condition; and although Fisher testified that the arrester in No. 82 was in good condition both before and after the fire, yet, by this testimony of Lampman’s, a question of fact was raised which could only be properly determined by a jury.

I think that the learned trial judge took the correct view of this, testimony. As it was for the plaintiff to show defendant’s negligence, if any, and as Lampman was uncertain whether the occurrence-at Coxsackie was on the twentieth or twenty-second, we should assume it occurred on the twenty-second, three days after the fire. It would not have been proper for the court to have allowed the jury to guess that the occurrence was on the twentieth, when the witness himself did not so testify. I think the fact that three days, after the fire one large spark was emitted from defendant’s engine could not be properly submitted to the jury as evidence that defendant’s engine was out of order three days before. There was ample time in the three days for some accident to have happened to the spark-arrester, or for a hole to have been worn in the netting.. Counsel for the plaintiff suggests that a witness testified that no-alterations or changes had been made in the engine from June first, to September first of that year. Such evidence, however, should not be deemed as meaning that changes may not have occurred during the time mentioned to the defendant’s engine by use or wear. It has been held, in such an action as this, that evidence-that defendant’s engine, on the same trip and the same day, caused other fires, was competent as tending to show the defective condition of the engine. (Slossen v. B. C. R. and N. R. Co., 60 Ia., 215.) But here the emission of the large spark was several days after the fire.

If the affirmative had been with the defendant as to the condition of the engine, and it had produced evidence that the spark-arrester was in good condition, both before and after the fire, it might have been proper for the plaintiff to have shown in rebuttal the emission of the spark after the fire. Such was the case of Loring v. W. and N. R. R. Co. (131 Mass., 469).

Plaintiff had the burden of showing that on June nineteenth defendant’s engine was out of repair in such a way as to cause the-'fire that destroyed her building. He failed to produce any evidence from which the jury would have been authorized to find that such locomotive was out of repair until some days after the fire. The then defective condition of the spark-arrester, of said engine may have existed prior to the fire which injured plaintiff, or it may, from wear or accident, have developed since the fire. It was for the plaintiff to show the defect prior to the fire. This he failed to do.

It would not have been proper for the court below to have allowed the jury to conjecture as to the time the spark-arrester became out of order. (See Searles v. Manhattan Ry. Co., 101 N. Y., 661; Reiss v. N. Y. S. Co., 128 id., 107.)

The court below, I think, did not err in excluding the evidence offered by plaintiff to show that prior to the fire, and in the vicinity of the premises where the fire occurred, sparks, and cinders were found on the line of defendant’s road and on plaintiff’s premises. As we have seen, plaintiff identified the engine that caused the fire, and hence the evidence in question was properly excluded by the court.

I, therefore, conclude that the judgment should be affirmed, with costs.

Mayham, P. J., and Herricx, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: HeeRicK, J.:

license: Public Domain

text:
    In the Matter of the Application of the SARATOGA GAS AND ELECTRIC-LIGHT COMPANY, Appellant, v. BYRON J. TOWN, Receiver of Taxes of the Village of Saratoga Springs, Respondent.

      Dismissal of an appeal, at the request of the parties, notwithstanding the opposition of the attorney for one of the parties.

    When the appellant and respondent unite in an application for the dismissal of an appeal, and there is no claim that the rights of any persons not parties to the record will he affected, and the action or proceeding is not one where the public can be considered a party, the application should not be refused because opposed by the attorney of one of the parties, in the absence of any claim of fraud or collusion, or of lien upon the matter in controversy.
    Motion to dismiss an appeal from an order refusing to grant a mandamus.

      Winsor B. French, for tbe appellant.

      Charles S. Lester and F. T. Braclcett, for tbe respondent.
   HeeRicK, J.:

On tbe application of tbe Saratoga Gas and Electric-ligbt Company an order was made by a justice of tbis court directing tbe receiver of taxes of Saratoga Springs to pay certain moneys to tbe gas and electric-ligbt company; tbe receiver paid over tbe moneys as directed by said order; tbe board of street commissioners of Saratoga Springs applied to tbe justice granting said order for a mandamus, compelling tbe said gas and electric-ligbt company to repay to said receiver tbe money paid by bim to said gas and electric-ligbt company; tbe justice refused to grant tbe mandamus, and from sucb refusal tbe board of street commissioners appealed to tbis court, and sucb appeal was placed upon tbe calendar of tbis court for tbe January term, 1892; thereafter the said board of street commissioners adopted certain preambles in relation to tbe matter, and a resolution reading as follows:

“Besolmed, That future prosecutions of said proceedings and of tbe appeal, or of any step in sucb proceedings, be and tbe same is hereby abandoned and stopped, and tbe attorney who has appeared for tbis board in sucb proceeding is hereby directed to take no further steps, and to do no other act in sucb matters.”

Tbe board directed that a .certified' copy of sucb resolution be served upon tbe attorney for tbe board of street commissioners, and also that tbe counsel for tbe gas company and tbe receiver be notified of tbe same.

The counsel for tbe respondents in tbis appeal, tbe Saratoga Gas and Electric-ligbt Company, and Byron J. Town, receiver of Sara-toga Springs, present tbe preamble and resolution of tbe board of street commissioners, together with an affidavit as to tbe status of the case, to tbis court and ask that the appeal be dismissed. Tbe counsel for tbe board of street commissioners oppose sucb motion, and ask that tbe appeal be proceeded with.

The adoption of tbe resolution is not denied. It is not claimed that there is any fraud or collusion between tbe parties in relation to tbe matter.

As a general rule, it is a matter of right that a party who has commenced a litigation may discontinue it, unless substantial rights of the other parties have accrued and injustice will be done to them by a discontinuance. (Matter of Butler, 101 N. Y., 307 ; Winans v. Winans, 124 id., 140.)

In the case last cited it was held that an application to discontinue was addressed to the legal not the arbitrary discretion of the court. But in that particular case it was held that the public must be regarded as a party, and that in the public interest a discontinuance might be refused.

In the case at bar the respondents to the appeal are not only willing,' but ask that the appeal be dismissed, so that we have all the parties to the record uniting; there is no claim that the rights of any persons not parties to the record will be affected, and it is not an action or proceeding like Winans v. Winans where the public can be considered a party.

The fact that the attorney for the appellant opposes the dismissal of the appeal, in the absence of any claim of fraud or collusion or lien upon the matter in controversy, is of no consequence. (Roberts v. Doty, 31 Hun, 128; Root v. Van Duzen, 32 id., 63.)

This is not a case where the attorney is, in fact, a party in interest, where he has a lien upon the claim, and where there has been a collusive settlement in fraud of his rights, and in the absence of any such facts it seems to me that it would be very unseemly for the court to refuse, at the request of an attorney, to grant the desire of all the parties to a contention that the litigation be settled.

The purpose of courts is to settle contentions and controversies, not continue them; and they will aid parties not embarrass them in making amicable adjustments of their difference.

The motion to dismiss the appeal is granted, no costs having been asked, none are allowed.

Mayhah, P. J., concurred; PutNam, J., not acting.

Appeal dismissed, without costs to either party.


author: O’Brien, J.

text:
    First Department,
    January Term, 1893.
    The First National Bank of Sing Sing, Respondent, v. Caleb B. Knevals and others, Assignees, etc., Appellants.
   —Judgment affirmed, with costs. Opinion by

O’Brien, J.


author: O’Brien and Barrett, JJ.; Van Brunt, P. J.

text:
    Alfred A. Blair and others, Respondents, v. James A. Flack, as Sheriff, etc., Appellant.
   — Judgment affirmed, with costs and disbursements. — Opinions by

O’Brien and Barrett, JJ.;

dissenting opinion by

Van Brunt, P. J.


text:
    Jacob Schwartz and others, Respondents, v. John Wood, Appellant.
   — Judgment reversed and new trial ordered before another referee, with costs and disbursements to appellant to abide event. Opinion by

O’Brien, J.


author: Per Curiam.

text:
    Henry Hughes, Respondent, v. The New York Elevated Railroad Company and others, Appellants.
   — Judgment affirmed, with costs and disbursements. Opinion

Per Curiam.


author: Van Brunt, P. J., and Barrett, J.

text:
    Joseph Thomson, Respondent, v. Samuel E. Fairfield, Appellant.
   — Order reversed, with ten dollars costs and disbursements. Opinions by

Van Brunt, P. J., and Barrett, J.


author: Van Rrunt, P. J.

text:
    Charles P. Hemenway and others, Respondents, v. Morris F. Knudson and others, Appellants.
   Order reversed as to cross-interrogatories mentioned in opinion, and affirmed as to the third cross-interrogatory, without costs of this appeal. Opinion by

Van Rrunt, P. J.


author: Barrett and O’Brien, JJ; Van Brunt, P. J.

text:
    John J. Zimmele, Respondent, v. The American Plaster Board Company, Appellant.
   Order affirmed, with ten dollars costs and the usual disbursements. Opinions by

Barrett and O’Brien, JJ;

dissenting opinion by

Van Brunt, P. J.


author: Barrett, J.

text:
    In the Matter of the Estate of Abner Mellen, Deceased.
   Decree affirmed, with costs to the respondent payable out. of the estate. Opinion by

Barrett, J.


text:
    Erwin Strickland, Respondent, v. Richard L. Leggett, Appellant.
   — Motion denied, with ten dollars costs.


text:
    Charles E. Hart, by his Guardian, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
   — Judgment and order reversed and a new trial ordered, with costs to appellant to abide the event. Opinions by

Van Brunt, P. J., O’Brien and Barrett, JJ.


author: Van Brunt, P. J.

text:
    George P. Upington, Respondent, v. John Keenan, Appellant.
   — Order reversed, with ten dollars costs and disbursements ’ and the motion ranted upon payment of the costs and dis-ursements of the trial, and such costs of the appeal from the judgment as might have been taxed at the time of the decision of the original motion. Opinion by

Van Brunt, P. J.


text:
    Edward F. Beddall, Appellant, v. The British and Foreign Marine Insurance Company (Limited), Respondent.
   — Judgment affirmed, with costs. Opinion by

Barrett, J.


text:
    La Societé Anonyme De L’Union Des Papeteries, Appellants, v. Samuel M. Markes and others, Respondents.
   Judgment reversed and new trial ordered, with costs to the appellants to abide the event. Opinion by

Barrett, J.


text:
    Wilcox and Gibbs Sewing Machine Company, Respondent, v. Jehiel W. Himes, Appellant.
   Order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    The National Bank of Commerce in New York, Respondent, v. The Whiteman Pulp and Paper Company and others, Appellants.
   — Order affirmed, with costs and disbursements. Opinion by

O’Brien, J.


author: Van Brunt. P. J.

text:
    Henry G. Keasbey and others, Respondents, v. The Brooklyn Chemical Works and others, Appellants
   — Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by

Van Brunt. P. J.


author: Ter Ci/nam.

text:
    John Brennan, as Guardian ad litem, etc., Appellant, v. The Mayor, etc., Respondent.
   Judgment affirmed, with costs. Opinion

Ter Ci/nam.


author: Ter Curiam.

text:
    Mary Reid, Respondent, v. The Mayor, etc., Appellant.
   Case ordered stricken from calendar. Opinion

Ter Curiam.


text:
    Henry W. Peabody and others Respondents, v. Emilio Cortado and others, Appellants.
   — Order reversed, with ten dollars costs and disbursements of appeal, and the morion denied, with ten dollars costs. Opinion

Ter Curiam.


text:
    William H. Schecker, Appellant, v. Edward J. Woolsey, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Ter Curiam.


text:
    David A. McLeod, Respondent, v. John H. Devoe, Appellant.
   Order affirmed, with ten dollars costs and. disbursements. Opiuion

Ter Curiam.


text:
    Catherine A. Pope, Respondent, v. Samuel A. Briggs, as Assignee, etc., and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Ter Curiam.


text:
    Kokomo Strawboard Company, Respondent, v. Horace Inman and another, Appellants
   —Order affirmed, with ten dollars costs and disbursements. Opinion

Ter Curiam.


text:
    Joseph Arthur and others, Respondents, v. Michael B. Leavitt, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Ter Curiam.


text:
    Charles H. Southard, Appellant, v. Charles A. Hammond, Respondent.
   — Order affirmed with ten dollars costs and disbursements. Opinion

Ter Curiam.


text:
    F. Kroeber Clock Company, Respondent, v. Emma H. Cassal, Appellant.
   — Order affirmed with ten dollars costs and disbursements. Opinion

Ter Curiam.


text:
    Sarah E. Mellen v. Abner Mellen and others.
   Motion denied with ten dollars costs. Mem.


author: Follett, J., and Van Brunt, P., J.

text:
    In the Matter of the Application of George W. Will and others, etc.
   That part of the order directing that the respondents be brought into the action as parties plaintiff is reversed and that part of the motion denied, but in all other respects the order is affirmed, without costs to either party Opinions by

Follett, J., and Van Brunt, P., J.


text:
    Louise Meise v. John H. Doscher.
   — Motion denied with ten dollars costs.


text:
    Helena Metzger, Respondent, v. The Metropolitan Elevated Railway Company, Appellant.
   Judgment reversed with costs, and the motion denied with ten dollars costs, with leave to the plaintiff on the payment of the costs to interpose demurrer if she shall be advised. Opinion

Per Curiam.


text:
    Hannah E. Boardman, Respondent, v. The Metropolitan Elevated Railway Railway Company, Appellant.
   — Judgment reversed, with coste, and the motion denied with ten dollars costs, with leave to the plaintiff on the payment of tho costs to interpose demurrer if she shall be so advised.


text:
    Edmund J. Curry, Respondent, v. The Metropolitan Elevated Railway Company, Appellant.
   — Judgment reversed, with costs, and the motion denied, with ten dollars costs, with leave to the plaintiff on the payments of the costs, to interpose demuner if he shall be so advised


text:
    Edmund J. Curry, Respondent, v. The New York Elevated Railrod Company, Appellant.
   — Judgment reversed with costs, and the motion denied with ten dollars costs, with leave to the plaintiff on the payment of the costs, to interpose demurrer if he shall be so advised.


text:
    Aloses K. Glines v. The Supreme Sitting Order of the Iron Hall.
   — Order affirmed, with costs. Opinion

Per Curiam.


text:
    Pittsfield National Bank v. William H. Bayne and others.
   —Motion granted as to plaintiff. Mem.


text:
    Aaron Schubart, Respondent, v. Andrew Kammerer, Appellant.
   —Motion granted, with ten dollars costs.


text:
    The People of the State of New York, Appellant, v. The New York Underground Railway Company and others, Respondents.
   — Application granted.


text:
    The People of the State of New York ex rel. United States Trust Company, as Committee, etc., v. Edward P. Barker and others, Commissioners, etc.
   — Order reversed, with ten dollars costs and disbursements, and the petition dismissed, with ten dollars costs. Opinion by

Van Brunt, P. J.


text:
    In the Matter of the Judicial Settlement of the Accounts of Joseph M. Johnson and others, Executors, etc.
   — Motion denied upon appellants paying ten dollars costs of motion and stipulating to argue at February General Term and perfecting appeal by giving proper undertaking ; the costs and stipulation and undertaking to be paid or given within five days after notice of this order.


author: O'Brien, J.

text:
    Edith Mason Faxon, Respondent, v. John Oscar Ball, Appellant, Impleaded, etc.
   Order affirmed, with costs and disbursements. Opinion by

O'Brien, J.


text:
    The People of the State of New York v. Sylvester F. Wilson.
   — The appellant has leave to put this case upon the February calendar of this court and file his cases upon appeal and notice the same for argument; and when the case comes up for argument, and thus the appellant has shown his good faith, the court will determine whether they will not set aside the dismissal already taken, and then hear the appeal upon the merits.


author: Lawrence, J., and Van Brunt, P. J.

text:
    Meyer Jonasson, Appellant, v. Edward E. Eames and others, Respondents.
   Judgment affirmed, with costs and disbursements. Opinions by

Lawrence, J., and Van Brunt, P. J.


text:
    Lou M. Bronson, Respondent, The Forty-second Street, etc., Railway Company, Appellant.
   Judgment modified as directed m opinion, and, as modified, affirmed, without costs of this appeal to either party. Opinion by

Barrett, J.


text:
    Gustav Daniel, Respondent, v. The New York News Publishing Company, Appellant.
   — Judgment affirmed, with costs. Opinion by

O’Brien, J.


author: Follett, J.

text:
    Mary C. Warren, as Executrix, etc., and others, Respondents, v. William C. Banning, Individually, and as Executor, etc., Appellant.
   Judgment affirmed, with costs. Opinion by

Follett, J.


author: Barnard, P. J.

text:
    Second Department,
    February Term, 1893.
    George Gerbig, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   — Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


author: Pratt, J.;

text:
    Eva W. Simmons, Plaintiff, v. Central N. E. and Western Railroad Company, Defendant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P.J., not sitting.


author: Barnard, P. J.;.

text:
    Daniel Hunt, Executor, etc., Appellant, v. Ellen Gleason and others, Respondents.
   — Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;.

Dykman, J., not sitting.


author: Barnard, P. J ;

text:
    Oscar Miersch, Respondent, v. Felix C. Bivin, Appellant.
   —Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J ;

Dykman, J., not silting.


text:
    E. G. Blakeslee Manufacturing Company, Plaintiff, v. The E. G. Blakeslee’s Sons’ Iron Works, Defendant.
   —Judgment affirmed for non-submission of papers according to stipulation.

— Dykman, J., not sitting.


author: Dykman, J.

text:
    Chauncey H. Skidmore, Plaintiff, v. The Anchor Brewing Company, Defendant.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Benjamin Wright, Appellant, v. David Miller and others, Respondents.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J.;

text:
    William Larder, Appellant, v. Elihu J. Granger and others, Respondents.
   — Order reversed, with costs and disbursements, and motion dc-nied. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    The People of the State of New York, Respondent, v. George Calvert, Appellant.
   — Conviction and judgment affirmed. Opinion by

Barnard, P. J.


text:
    John P. Adams, Appellant, v. Henry A. Morgan, President, etc., Respondent.
   — Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Opinion by

Dykman, J.


author: Pratt, J.

text:
    Mary B. Bancroft, Respondent, v. The City of Newburg, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Oliver W. Barnes, Respondent, v. James Seligman and others, Appellants.
   — Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    Max Bertuch, Respondent, v. Michael Sweeney and another, Appellants.
   — Order refusing motion to vacate arrest affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Henry H. Skinner, Administrator, etc., v. Prospect Park and Coney Island Railroad Company.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Henry H. Skinner and others, Administrators, v. Prospect Park and Coney Island Railroad Company.
   — Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Tom L. Johnson and another, Respondents, v. The Atlantic Avenue Railroad Company, Appellant.
   Order denying reference reversed, ■with costs and disbursements, and motion granted. Opinion by

Dykman, J.;

Barnard, P. ’ . not sitting.


author: Dykman, J

text:
    Matter of Probate of Will of Augustus Nelson, Deceased.
   — Order admitting will to probate affirmed, with costs to he paid by appellants. Opinion by

Dykman, J


text:
    Herman B. Ogden, Respondent, v. The Kings County Elevated Railroad Company, Appellant.
   —Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    National Bank of Orange County, Plaintiff, v. Ida D. Van Steinburgh, Defendant.
   — Judgment affirmed, with costs, with leave to defendant to answer in twenty days on payment of costs according to stipulation.


text:
    Alfred B. Phillips, Respondent, v. The Citizens Gas-light Company of Brooklyn, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Maurice Kelly, Appellant, v. The Pelham Hod Elevating Company, Respondent.
   — Judgment reversed and new trial granted, costs to abide event. Opinion by

Dykman, J.


text:
    Arthur M. Dodge and others, Respondents, v. Henry N. Ockerhausen, Appellant.
   —Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Matter of Judicial Settlement of Executors of Henry R. Worthington.
   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


author: Barnard, P. J.;

text:
    Sarah M. Judd, Appellant, v. Mary E. Burrell and others, Respondents.
   — Judgment reversed and new trial granted, costs to abide event.

Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


author: Pratt. J.

text:
    Harlan P. Christie, Respondent, v. Cornelius Callahan Company, Appellant.
   — Judgment affirmed, with costs. Opinion by

Pratt. J.


author: Dyk-man, J.;

text:
    Terrence McCracken, Respondent, v. William C. Flanagan and another, Appellants.
   — Judgment affirmed, with costs. Opinion by

Dyk-man, J.;

Pratt, J., not sitting.


text:
    William H. Miller and others, Respondents, v. Edward Benjamin and another, Appellants.
   — Judgment and order denying new trial affirmed* with costs. Opinion by

Pratt, J.


text:
    William Henry Beard and others, Appellants, v. Mary A. Beard and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


author: Hardin, P. J.

text:
    Fourth Department,
    February Term, 1893.
    Arthur S. Grout, Respondent, v. John B. Cottrell, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Hardin, P. J.


author: Hardin P. J.;

text:
    Edwin Butterworth and others, Respondents, v. Enos Boutilier and another, Appellants.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Hardin P. J.;

Merwin, J., not sitting.


text:
    Jerome D. Holmes, Appellant, v. William E. Roper, and another, Administrators, etc., Respondents.
   — Judgment affirmed, with costs.


author: Hardin, P. J.;

text:
    Eliza Dering, as Administrator, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   — Judgment affirmed, with costs. Opinion by

Hardin, P. J.;

Merwin, J., not sitting.


text:
    Alexander Grant and another, Respondents, v. Syracuse Door and Blind Company and Clarence v. Kellogg, Appellants.
   — Judgment modified by striking therefrom the provision directing Kellogg to pay $385.64 damages, and authorizing execution therefor; and in lieu thereof, inserting a provision directing the appointment of a receiverfor the corporation, and providing that, after his appointment and qualification, defendant Kellogg shall pay over to him $2,409.80, being the amount received by Kellogg on his judgment and execution, to be distributed by the receiver among the creditors of the corporation according to their respective rights and interests. The provision in the judgment allowing plaintiffs’ costs, as awarded, to remain. Ana the judgment, as so modified, affirmed, with costs of this appeal to the defendant Kellogg.


text:
    Horace Parks, as Surviving Administrator, Appellant, v. Clarence Andrews, Individually and as Administrator of Josiah Andrews, Deceased, and others, Respondents.
   Judgment and order reversed and a new trial ordered, with costs to abide the event. Held, That the exceptions taken to the admission of the evidence of Grant Andrews and May Potter, as to the declarations of their father, present error. (See Holcomb v. Holcomb 95 N. Y., 316; Matter of Eysaman, 113 id., 162; Matter of Will of Dunham, 121 id., 575.) (2.) After excluding such evidence, the verdict and decision are against the weight of evidence.


text:
    George H. Lawrence and another, Respondent, v. John W. Lischer, Appellant.
   — Judgment affirmed, with costs.


text:
    Edward J. Davis, Respondent, v. Warren G. Willis, Appellant.
   — Judgment affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Elizabeth Connor, Appellant, v. Deleaware, Lackawanna and Western Railroad Company, Respondent.
   — Motion denied, without costs.


text:
    In the Matter of the Application of the Second National Bank of Cooperstown, pursuant to the request of the Comptroller of the State of New York for the transfer of funds or moneys held in trust by the treasurer of Otsego county.
   — Application granted; order to be certified and countersigned by the presiding justice. Papers filed with clerk of Broome county to be certified by him and transmitted, to and filed with the clerk of Otsego county.


text:
    William Sterling, by Guardian, Appellant, v. Emeline Hill, Respondent.
   — Order affirmed,, without costs. Defendant’s appeal dismissed* with ten dollars costs.


text:
    Clark S. Bennett, Appellant, v. Edmund R. Bell and another executors of Calvin H. Bell, deceased, Respondents.
   — Order affirmed, without costs. Held, that as the order does not appear to have prejudiced the appelh nt, it is not necessary to pass upon the question as to the power 'of the court to amend the verdict.


text:
    Henry Lupton, Appellant, v. Thomas W Patterson, Respondent.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. The Syracuse Pressed Brick Company, Respondent, v. William Duffus, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex r . The Syracuse Pressed Brick Company, Respondent, v. Charles H. Baker, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    James G. Hillidge, Respondent, v. Albert B. Park, Appellant.
   — Order reversed with ten dollars costs and disbursements.


text:
    In the Matter of the Estate of George W. Dodge, deceased, Sarah E. Dodge and others, Appellants, v. C. Lansing Jones, Respondent.
   Order modified by inserting therein after the words “ terms thereof ” the following “ without prejudice to any proceeding or action to obtain a benefit under the third clause of the will,” and, as modified, affirmed, with ten dollars-costs and disbursements to Stevens, as guardian ad litem, payable out of the funds.


text:
    Clark S. Bennett, Respondent, v. Edmund R. Bell and another executor of Calvin H. Bell, deceased, Appellants.
   — Judgment and order-affirmed, with costs.


text:
    Melissa Squires, Appellant, v. Oliver P. Hurd, Respondent.
   — Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event. Held (l). That the court erred in limiting the defendant’s, liability to negligence. (2.) That the plaintiff is entitled to recover for such injuries as resulted from defendant’s change of the natural course of the stream.


text:
    William Duffus, Respondent, v. Christoph Schwinger and others, Appellants.
   — Order refusing a new trial on. the ground of surprise reversed and a new trial ordered, and judgment and order on minutes vacated upon payment of the costs of the trial by the defendants within twenty days; if such costs are paid, neither party to have costs of the appeal. In case the costs are not so paid, the orders and judgment are affirmed, with costs of appeal from judgment


text:
    Esther Y. McCarthy, Respondent, v. Eugene McCarthy, Appellant.
   —Judgment and orders affirmed, with costs of the appeal from the judgment only.


text:
    Charles W. Bardeen, Respondent, v. Alvin P. Chapin, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    David K. McCarthy, Dennis McCarthy and Thomas Emory, Respondents, v. Oliver S. Vreeland, Appellant.
   — Orders reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.


text:
    Ira Rounds, Appellant, v. John Henderson, Respondent.
   —Judgment affirmed, with costs.


text:
    Jennie L. Baldwin, Appellant, v. Silas H. Walker and another, Respondents.
   — Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, that evidence of Olive D. Walker was improperly received. (See Steele v. Ward, 30 Hun, 555; Matter of Hewitt, 21 Week. Dig., 296; Erwin v. Erwin, 54 Hun, 166.)


text:
    Frances J. Coe, as Administratrix, etc., Appellant, v. The Rome, Watertown and Ogdensburg Railroad Company, Respondent.
   — Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, that the evidence presented questions of fact which should have been submitted to the jury. —


text:
    George Alden, as Receiver, Appellant, v. Edward K. Clark, Respondent, Impleaded, etc.
   —Interlocutory judgment, so far as appealed from, reversed, with costs of the appeal to the appellant, and demurrer to the first and second alleged defenses sustained.


text:
    Jonathan L. Watrous, Respondent, v. Richard C. Duell, Appellant.
   — Judgment and order reversed and a new trial ordered, with costs to abide the event, unless the respondent shall, within twenty days, stipulate to modify the judgment and order by deducting therefrom twenty dollars and forty-three cents, in which event the order and judgment, as so modified, are affirmed, without costs of the appeal to either party.


text:
    George Alden, as Receiver, etc., Appellant, v. John La Grange, Respondent, Impleaded, etc.
   Interlocutory judgment, so far as appealed from, reversed, with costs of the appeal to the appellant, and demurrer to the first and second defenses sustained.


text:
    John Hase, Respondent, v. J. Warren Kenyon, Appellant.
   — Judgment of the County Court and judgment of the Justice' [Court modified by deducting from the amount of damages awarded the sum of thirty-eight dollars and fifty-eight cents, and by striking out the costs awarded in the County Court, and, as so modified, affirmed, without costs of appeal in this court to cither party.


text:
    William A. Curtin, Respondent, v. William E. Barton, Appellant.
   — Judgment affirmed, with costs; leave to appeal to the Court of Appeals granted on the ground that the case involves a question of law which ought to be reviewed by that court.


text:
    George Campbell, Respondent, v. Patrick Hannon, Appellant.
   — Judgment affirmed, with costs; leave to appeal to the Court of Appeals granted on the ground that the case involves a question of law which ought to be reviewed by that court.


text:
    Henry B. Sewell, Respondent, v. Aaron M. Lathrop, Appellant.
   — Order modified by striking out the words “ with costs to abide the event ” and inserting in lieu thereof the words “upon payment of the cests of the trial; if such costs are not paid within twenty days the motionfor a new trial denied,with costs,” and, as so modified, affirmed, without costs of the appeal to either party. (See Bailey v. Park, 5 Hun, 41; Comstock v. Dye, 13 id., 113; Kelly v. Frazier, 27 id., 314; Roney v. Aldrich, 44 id., 320.)


text:
    The People of the State of New York, Appellant, v. Charles Mason, Respondent.
   Judgment reversed upon the exceptions and a new trial ordered, with costs to abide the event. Held, that the action was properly brought. (See Laws of 1889, chap. 577.)


text:
    Frederick Kingsbury, Respondent, v. Savillian F. Traffarn, Appellant.
   — Judgment affirmed, with costs.


text:
    Arlington D. Bassett, Appellant, v. Ralph Resseguie and Percy Davis, Respondents.
   — Judgment of the Justice’s Court and County Court, as to Resseguie affirmed, with costs, and as to Davis reversed, without costs of appeal in the County Court or this court.


text:
    Frank E. Gregory and William E. Gregory, Respondents, v. James W. Dean and Clarence W. Dean, Appellants.
   — Judgment affirmed, with costs.


text:
    Jacob Van Orman, Respondent, v. Maria Van Orman, Appellant.
   — Judgment affirmed, with costs.


text:
    James H. Bouton, Respondent, v. Thomas S. Smith, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York, Respondent, v. George W. Stoughtenburgh, Appellant.
   — Appeal dismissed. Followed. (People v. Havens, 3 Crim. Rep., 286.)


text:
    George Douglas, Respondent, v. Michael H. Callahan, Appellant.
   Order affirmed, with ten. dollars costs and disbursements.


author: Van Brunt, P. J.

text:
    First Department,
    February Term, 1893.
    Isaac H. Bailey, as Assignee, etc., Plaintiff and Appellant, v. Daniel Drew Chamberlain and others, Respondents and Appellants.
   Judgment, so far as it dismissed the complaint, affirmed, without costs. Opinion by

Van Brunt, P. J.


author: Per Curiam.

text:
    The United States Vinegar Company, Plaintiff, v. Henry Spainer, Defendant.
   Exceptions overruled, and judgment for the plaintiff ordered on the verdict, with costs. Opinion

Per Curiam.


author: Van Brunt, P. J.,

text:
    The People of the State of New York, Respondent, v. John P. Kirwan, Appellant.
   Judgment reversed and new trial granted. Opinions by

Van Brunt, P. J.,

O’Brien and Patterson, JJ.


text:
    Hecla Consolidated Gold Mining Company, Respondent, v. William L. O’Neill, Appellant.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Henry M. Potter, Appellant, v. The United States National Bank and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


author: O’Brien, J.

text:
    The People of the State of New York, Respondent, v. Daniel Kennedy, Appellant.
   Judgment affirmed. Opinion by

O’Brien, J.


text:
    Henry W. Johnson, Plaintiff, v. Edward G. Williams, Defendant.
   Judgment ordered for glaintiff, with costs against the defendant irecting that he perform his contract and accept the deed tendered by the plaintiff, and, in other respects, comply with the terms of the agreement. Opinion by

O’Brien, J.


author: Follett, J.

text:
    Georgianna F. Webster, Respondent, v. Mary J. Clark, as Executrix, etc., Appellant.
   Emal judgment affirmed, with costs. Opinion by

Follett, J.


author: O’Brien, J,

text:
    John W. Boughton and another, Respondents, v. Millard F. Smith, Appellant.
   — Judgment affirmed, with costs. Opinion by

O’Brien, J,


text:
    In the Matter of Henry S. Valentine, Deceased.
   Decree affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    John Pierce, Appellant, v. John B. Devlin and others, Appellants and Respondents.
   Judgment affirmed, with costs and disbursements. Opinion by

O’Brien, J.


text:
    George Campbell and another, Respondents, v. Robert F. Sloane and another, Appellants, Impleaded, etc.
   Judgment reversed and new trial ordered before a new referee, with costs and disbursements to appellants to abide the event. Opinion by

O’Brien, J.


text:
    The People of the State of New York, Respondent, v. John Hartley, Appellant.
   Judgment affirmed. Opinion

Per Curiam.


text:
    Ernest J. Lecocq, Appellant, v. Auguste Pottier, as executor, etc., Respondent.
   Order affirmed with ten dollars costs and disbursements. No opinion.


text:
    Helena Metzger, Respondent, v. The Metropolitan Elevated Railway Company, Appellant. Hannah E. Boardman and another, Respondents, v. The Metroplitan Elevated Railway Company, Appellant. Edmund J. Curry, Respondent, v. The Metropolitan Elevated Railway Company, Appellant. Edmund J. Curry, Respondent, v. The New York Elevated Railroad Company, Appellant.
   — Motions for reargument denied with ten dollars costs and printing disbursements in one case.


author: Per CuHam.

text:
    Leo Goldmark, Respondent, v. The Metropolitan Opera House Company, Appellant.
   — Order reversed with ten dollars costs and disbursements, and the motion to suppress the commission granted with ten dollars costs. Opinion

Per CuHam.


text:
    Sarah Lazarus and others, Appellants, v. The Metropolitan Elevated Railway Company and others, Respondents.
   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


author: Per CuHam-.

text:
    Sarah Lazarus and others, executors, Respondents, v. The Metropolitan Elevated Railway Company and others, Appellants
   — Order affirmed, with costs and disbursements. Opinion

Per CuHam-.


author: Per QuHam.

text:
    In the Matter of the Application of The Metropolitan Elevated Railway Company (In re Jones et al).
   — Parcel 7. Order affirmed, with ten dollars costs and disbursements. Opinion

Per QuHam.


text:
    The People of the State of New York ex rel. Fred S. Heiser, Appellant, v. Edward Gilon and others, Board of Assessors, etc., and others, Respondents.
   Order affirmed, with ten dollars costs. Opinion

Per CuHam.


text:
    In the Matter of the Application of The Metropolitan Elevated Railway Company (In re Jones et al).
   — Parcel 54. Order affirmed, with ten dollars costs and disbursements. Opinion

Per CuHam.


text:
    Edward C. James, Respondent, v. James Henry Work, Appellant.
   — Order in respect to the two amendments stated in opinion reversed, but in all other respects affirmed, without costs to either party. Opinion

Per CuHam.


text:
    Jirah J. Foote and others, executors, Plaintiff, v. Lucy F. Bruggerhof, as administratrix, etc., and others, Defendants.
   —Motion denied with ten dollars costs. Opinion

Per CuHam.


text:
    Andrew W. Gerlach, Respondent, v. Charles Amman, Appellant.
   — Judgment affirmed, with costs.


text:
    William O. Hart, Appellant, v. Augustus Bernau, Respondent.
   — Order affirmed, with ten dollars costs and printing disbursements. Opinion

Per Curiam.


text:
    Emanuel Popper, Appellant, v. Henry Wallach and another, Respondents.
   — Judgment affirmed, with costs and disbursements.


text:
    Carroll Whitaker, Appellant, v. Heman L. White and others, Respondents.
   — Order reversed and motion denied, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    Joseph Stern, Respondent, v. Edward R. Ladew and another, Appellants.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    Anna F. Travers, Respondent, v. Herbert L. Satterlee and others, Appellants.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    The Dueber Watch Case Manufacturing Company, Appellant, v. The American and Waltham Watch Company, Respondent.
   Order reversed, with ten dollars costs and disbursements. Opinion

Per CuHam.


text:
    The Globe Sewer Pipe Company, Appellant, v. Ira L. Otis and others, Respondents.
   — Judgment reversed and new trial ordered, with costB to appellant to abide event. Opinion

Per CuHam.


text:
    National Park Bank of New York, Respondent, v. Moses S. Levy, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Emil A. Cornuel and others, Respondents, v. Otto C. Heinze, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Jacob Schwartz and others v. John Wood.
   Motion denied, wdth ten dollars costs.


text:
    In the Matter of the Application of James Steele for the Examination of William G. Smith.
   Order affirmed, with costs and disbursements. No opinion.


author: Herrick, J.

text:
    Third Department,
    February Term, 1892.
    James Walter Crystal, by Guardian, Appellant, v. The Troy and Boston Railroad Company, Respondent.
   — Judgment affirmed, with costs. Opinion by

Herrick, J.


text:
    William M. Frommel, Appellant, v. William McKinstry, Respondent.
   — Order affirmed, with costs, to be paid personally by the appellant. Ho opinion.


text:
    The People of the State of New York ex rel. Edison Electric-light Company v Frank Campbell, as Comptroller, etc.
   — Determination of Comptroller confirmed, with costs and printing disbursements. Opinion by

Herrick, J.


author: Herrick, J.;

text:
    Leocadie A. V. Cassagne, Appellant, v. James M. Marvin and another, Respondents.
   — Judgment affirmed as to the appeals of both parties, without costs on appeal to either. Opinion by

Herrick, J.;

Putnam, J., not acting,


author: Putnam, J.

text:
    Charles Bouck, Appellant, v. Charles H. Wolston, Respondent.
   Judgment reversed, new trial ranted, with costs to abide the event. Opinion by

Putnam, J.


text:
    John Barth, Respondent, v. Erastus P. Backus, Sheriff, and others, Appellants.
   — Judgment affirmed, with costs. Opinion by

Herrick, J.


author: Mayham, P. J.

text:
    Lemon Thomson, Respondent, v. John O. Poor and others, Appellants
   —Judgment affirmed, with costs. Opinion by

Mayham, P. J.


text:
    George H. Richardson, Appellant, v. Jonathan Levi and others, Respondents.
   — Judgment reversed, a new trial granted, costs to abide the event. Opinion by

Herrick, J.


text:
    Fred. C. Laidley, Assignee, etc., Respondent, v. James Rogers and others, Appellants
   Order affirmed, as per opinion, without costs. Opinion by

Putnam, J.


text:
    Caroline Greenberg, Respondent, v. The City of Kingston, Appellant.
   — Judgment affirmed, with costs. Opinion by

Herrick, J.


text:
    William B. Griffin, Appellant, v. J. Hyler White, Surviving Partner, etc., Respondent.
   — Judgment affirmed on the opinion of the court below, without costs. Mem. by

Putnam, J.


author: Herrick, J

text:
    The People of the State of New York, Respondent, v. John J. O’Melia, Appellant.
   — Judgment affirmed, with costs. Mem. by

Herrick, J


text:
    Decisions handed down March 2, 1893.
    Charles E. Bullard and Charles O. Howe, Appellants, v. Mary C. Harris and others, Respondents.
   Motion for reargument, granted, without costs. No opinion.


text:
    Nannie L. Vaughn, Respondent, v. Mary M. Strong, as Administratrix, etc., Appellant.
   Motion for reargument denied, with ten dollars costs. No opinion.


author: Herrick. J.

text:
    The Donohue, Tierney, Isengert Brewing Company, Respondent, v. The Fitchburg Railroad Company, Appellant
   Judgment reversed, new trial granted, costs to abide event. Mem. by

Herrick. J.

All concur.


text:
    Anna S. Carpenter, Appellant, v. Hiland Carpenter, Respondent.
   — Order affirmed, with ten dollars costs and printing and other disbursements. No opinion.


author: O’Brien, J.:

text:
    Henry G. Newhall, Plaintiff, v. Christopher A. Wyatt, Defendant. In the Matter of the Claim of James R. Clark, Appellant, v. C. A. Wyatt & Company. Thomas S. Ryan, Receiver, Respondent.

      Liability of a new firm for the debts of a former firm — obligation of a special partner — burden of proof as to the receipt of assets — illegal pa/yment out of moneys of the new firm — reference — allowance of claims.

    Where an individual who, while doing business in a firm name, has received goods on consignment for sale on commission, subsequently forms, as general partner, a limited partnership with another person as special partner, under the same firm name, and thereafter renders, without the knowledge of the special partner, a fictitious account to the consignor of the goods, by which account goods which had been consigned to the old firm and for which he was individually indebted, are falsely represented as having come into the possession of the new firm, the new firm is not thereby rendered liable for the goods not consigned to it or on its credit, and which never came into its possession.
    An obligation, on the part of one who entered, as special partner, a firm formed to carry on a business previously conducted by the general partner individually in a firm name, to pay debts of the old firm, is not to be inferred from the fact that the business continued to be conducted as formerly, under the same firm name, and that the old firm’s books were used by the new firm, and the old accounts were brought forward, where the books and the statements of assets therein were falsified by the general partner for the purpose of concealing his misappropriations, and such falsifications and misappropriations were not discovered owing to the short continuance of the Existence of the new firm.

      In order to charge such new firm, upon the theory that it has received money or assets of the old firm, the burden is upon the person seeking to so charge it to show that such assets came into the hands of the new firm, as it is not to be presumed that the latter took and retained moneys of the old firm, in the absence of an agreement showing its right so to do.
    Drafts drawn in favor of third parties by a consignor of goods, and accepted by the general partner prior to the formation of the new firm, and thereafter illegally paid by a bank out of moneys of the new firm, without the knowledge of the special partner and without such obligation having been recognized or assumed by the new firm, are, on a reference to pass upon claims against the new firm presented to a receiver appointed in a proceeding for its dissolution, properly applied in reduction of the indebtedness of the new firm to such consignor.
    In a proceeding before a referee appointed to determine the validity of claims against a partnership, which have been presented to a receiver, appointed in an action brought for the dissolution of the partnership, neither the referee nor the Qeneral Term is authorized to allow a claimant an amount larger than his claim as originally presented and referred.
    Appeal by James R. Clark, claimant, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 18th day of April, 1892, confirming the report of the referee appointed to pass upon the validity of certain disputed claims presented to the receiver of the firm of O. A. Wyatt & Co., and overruling the exceptions to such report filed on the part of the claimant.

      James Byrne, for the appellant.

      L. Laftvn Kellogg, for the respondent.
   O’Brien, J.:

The plaintiff, claiming to be a special partner in the firm of C. A. Wyatt & Co., brought an action against the only general partner, Christopher A. Wyatt, for the dissolution of the partnership, an accounting, receivership and for a distribution. In such action the receiver, after his appointment, having advertised for claims, and that of James B. Clark, the appellant here, having been presented, an order was made referring it to a referee to hear and determine as to the validity of such claim.

Upon such reference it was made to appear that in November, 1887, an agreement was made between the claimant Clark and one O. A. Wyatt, doing business as C. A. Wyatt & Co., under which Clark was to send from his mills, woolens to be sold by Wyatt, who was to be paid seven per cent commissions and expenses. On November 1, 1888, Wyatt, as shown by the certificate of the formation of limited partnership, took in the plaintiff as a special partner, the firm continuing under the same style of C. A. Wyatt & Co. No proof was offered of any agreement by the new firm to be responsible for the debts or obligations of the old firm; but the claimant insisted that the fact that the old books were used by the new firm, and the course of dealing during the few months of the new firm’s existence, were sufficient to create an obligation on the new firm to pay the debts of the old one. And, in this connection, great stress was placed upon the fact that during the first month of the new firm’s existence, in November, 1888, a statement of account was rendered, purporting to be an account of the new firm with the claimant, in which the assumption of the liability of the old firm is recognized; and upon this the claimant relies as being an account stated between the parties and conclusive as to the indebtedness of the new firm to him upon the date of such account. The correctness of this contention will be considered when we take up the several claims made by appellant.

The appellant’s first claim which was disallowed by the referee is, that the new firm should be charged with the full value of the goods shipped to the old firm, but admitted by the account rendered November twenty-fifth to have come into the possession of the new firm; and, upon the theory that this was an account stated and binding upon the new firm, that this liability arose regardless of the fact as to whether the goods themselves came into the new firm or not.

We think that in this argument the appellant overlooks the distinction between a general and a special partner, their duties and their responsibilities, and gives undue weight to a statement made by Wyatt, though it purports to have been made by the newr firm. 'Because, upon the facts here appearing, it being conceded that this was a fictitious and fraudulent account made up by Wyatt for the-purpose of deceiving the claimant Clark, after he had appropriated and converted to his own use most of the latter’s property, it would be a harsh rule of law that would hold, under such circumstances, that a special partner who had no knowledge of the rendering of any such account should be held responsible to the same extent as though it were made in good faith or was true, and as though the firm had received the 'assets of the old firm as stated in such account. Moreover, it must be remembered that the indebtedness for any goods consigned to the old firm was the individual indebtedness of C. A. Wyatt, who alone constituted the former firm of C. A. Wyatt & Co.; and there is no rule of law to which we have been referred which goes to the extent of holding that one partner by his declaration, even during the existence of the partnership, can change what on the face of the transaction appears to be his individual debt into a debt against the firm.

In the absence of proof, therefore, of any agreement to pay the debts of the old firm, we do not think that the claimant is entitled to any greater credit than the referee allowed, namely, $500, which, as shown, was the value of all the goods belonging to the old firm that came into the possession of the new. And with respect to the claim for other goods assigned to the old firm, we think the referee was right in disallowing it, because these goods were not consigned to the new firm, or on the credit of the new firm, and never came into its possession.

Appellant’s further contention that the firm is liable for the debts of the old firm, upon the ground that it appears conclusively from the course of business, and from the evidence generally, that the new firm promised to assume the obligations of the old one, we think was also properly disposed of by the referee. It is true that the business was conducted by the new firm precisely as it was conducted by the old, and that the same books were used by both, that the account with the claimant in the old ledger was transferred to a new one called the special ledger,” and the balance claimed was brought forward in the new ledger and carried on with new debits and credits. It should be borne in mind, however, when it is sought to charge the plaintiff with the course of dealing, that the evidence shows that the books themselves and the statement of assets therein contained were fictitious and fraudulent; and that the failure to discover the falsity of such statement, or the taking of the firm assets for his own use by "Wyatt, is in part exjdained by the short duration of the partnership, which, formed in November, 1888, was in the hands of a receiver in February, 1889, a period of less than four months, and the further fact that plaintiff was a special and not a general partner.

In the case of Hannigan v. Allen (127 N. Y. 639), referred to by appellant, the facts were very different from those in the case at bar, as shown by the very quotation from the opinion of the court, for, as therein said: The goods having been transferred to the firm, and the firm having assumed and agreed to pay the balance of the purchase-price unpaid, the agreement of the firm will be deemed to have been made for the benefit of the creditors holding such claims, and an action may be maintained by such a creditor against the firm upon such agreement.”

The cases more like in principle are those of Serviss v. McDonnell (107 N. Y. 260) and Wheat v. Rice (97 id. 296), which go to the extent of holding (head-note, Serviss v. McDonnell), that an incoming partner can only be made liable by agreement for the ’ prior debts of the firm, whether he succeeds an outgoing partner by purchase, or whether, upon the death of one partner, he joins with the survivor in carrying on the business; that an undertaking on his part alone, or in connection with others, that the new firm will pay the debts of the old firm, can be enforced only by the old firm; its creditors may not sue for a breach of it. As further shown by the dietum in that case: As the plaintiff’s contract was with the members of the old firm, in the absence of evidence that there had been a change of credit or a promise on plaintiff’s part to accept the incoming members as his debtors, or some analagous act, no recovery could be had against them; (that) the obligation of the contract did not inure to plaintiff’s benefit.”

There is no evidence here of any express agreement or undertaking on the part of the plaintiff to pay the debts of the old firm. Neither do we think the evidence sufficient to justify the conclusion that from the course of dealing, considering the short life of the firm, an obligation to pay such indebtedness by plaintiff will be inferred or presumed.

Another claim made by appellant is, that it was error on the part of the referee not to allow the value of certain goods which were sold before November 1, 1888, and which, by the terms of credit, were to be paid for after such date. The solution of this must necessarily depend upon the question as to which of the parties held the burden of proof. If, in order to charge the new firm with liability for such goods sold prior to the formation of the new firm, it was necessary for claimant to show that the money representing the goods was paid into the new firm, then the referee was correct, because.there was no evidence to support this burden. It is true there was some evidence given by one of the salesmen, that if there was any firm not paying their bills he would have heard of it from the office and would go and collect such bills; that such were his personal customers. This testimony, however, is not of much greater value than would be a guess at the probability in favor of appellant’s theory that the new firm collected this indebtedness, and it can hardly be dignified or regarded as evidence tending to support or establish as a matter of fact that the new firm collected these moneys, and if the burden was upon the appellant, it not having been supported, the referee was justified in not allowing it.

On the other hand, if the receiver of the new firm was bound to show, to prevent a credit being given to the claimant, that the firm never received these moneys, then, there being no evidence offered to sustain this position of the receiver, it should have been allowed.

We think that the rule laid down by the referee was the correct one, that in order to charge the new firm, upon the theory that it had received money or assets of the old firm, it was necessary for the claimant to show that such assets or money came into the hands of the new firm. Because it will not be presumed that the new firm took and retained moneys of the old firm, in the absence of an agreement showing its right so to do.

The third claim is that the referee should not have charged Clark, or credited the new firm, with the amount of acceptances given by the old firm to Conway, Gordon & Garner. These drafts were drawn by the claimant in favor of the parties named, and were accepted by Wyatt prior to the formation of the new firm. Appellant claims that the evidence did not justify the finding of the referee that these drafts were paid by the new firm. We think, however, that the circumstance, as testified to by the teller of the bank, that they were paid out of the firm account of Wyatt & Co., and subsequent, to the formation of this new firm, is sufficient to make out a prima facie case in favor of the view that these drafts were paid with moneys of the new firm, and that, in the absence of proof to the contrary, the finding upon the evidence was justified.

But assuming the drafts to have been paid with the moneys of the new firm, appellant further insists that no credit should have been given in adjusting accounts between them, to the receiver, and that the remedy, if any, of the latter would be against those who received the money on the drafts.

That no injustice was done in allowing a credit for such amount to the receiver, instead of asserting the latter’s right to maintain an action, either against the claimant Clark, or the bankers to whom the drafts were made payable, and who received the money thereon, will be shown by a brief consideration of this point.

Assuming, as we must from the evidence, that without the knowledge of the special partner, Wyatt took the money of the new firm to pay the drafts of the old firm — which as shown was his individual indebtedness — and these debts or the right to pay such drafts out of the assets of the new firm never having been recognized or assumed, by agreement or otherwise, by the new firm, so far as the evidence discloses, the appropriation of the moneys of the new firm to the payment of such drafts was illegal and unauthorized. It was shown that at the time of the payment both the new and the old firm were indebted to the claimant. And while the receiver might have had his action to recover in full against Clark, the more liberal rule applied by the referee of allowing the drafts so paid to be applied upon the indebtedness of the new firm is the one most favorable to the claimant. (Geery v. Cockroft, 33 Super. Ct. 146.) Admittedly, Clark, the creditor, got the benefit of these drafts; and when we remember that the question was as to what was due him from the new firm, upon it appearing that, for his benefit, one of the partners had, without authority and illegally, applied the assets of such firm, it was but just that the amount of Clark’s claim should be offset by the credit which thus arose in favor of the receiver representing the other creditors.

This brings us to the last ground, which consists of a claim which does not seem to have been specially brought to the notice of the referée, but is now urged upon this appeal. It appears that, for goods shipped subsequent to November first, consisting of certain cheviots, the value was fixed in the claim presented to the receiver at $13,983.68. It would appear, however, from the evidence, that the actual market value of these goods was $15,531.50, the differenee between these two amounts consisting of the commission of seven per cent and expenses, which was allowed to Wyatt & Co. by Clark, and which was deducted in presenting the claim as to the amount of goods for which Wyatt & Co. should give Clark credit.

. The referee held that no deduction should be made for commissions or expenses, etc., for services rendered or expenses incurred since November 1, 1888. It will be seen that upon these goods the commission and expenses were allowed. The ease, however, contains the evidence as to the value of the goods, showing that they were worth the difference between the amount of this item, as inserted in Clark’s claim presented to the receiver, and the amount shown to have been the true market price. In addition, the referee was requested by Clark to find “ that the value of this cloth was $15,531.79, exclusive of expenses and commissions,” which was refused, and an exception taken.

The principle which supports the referee’s refusal to allow the difference is obvious. It could not be done without increasing this item $1,548.11, thus increasing the claim originally presented and referred. This the referee had no power to do, without some amendment having been made in the claim as originally presented. (Eldred v. Eames, 115 N. Y. 401.)

The case of Canaday v. Stiger (35 Super. Ct. 432; affirmed, 55 N. Y. 456) is seeming authority for the view that the appellate court can increase the judgment where, upon undisputed evidence, such increase is proper. That, however, was in an action at law, and not a special proceeding, and the appellate court did not increase the amount of the judgment so as to make it exceed the claim made by the complaint. We are, therefore, as powerless as was the referee to allow for an amount greater than the claim as originally presented and referred.

We think that the referee was right in his conclusions, and that the judgment should be affirmed, with costs.

Yan Brunt, P. J., and Follett, J., concurred,

Judgment affirmed, with costs.


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    Charles H. Richardson, Respondent, v. Emil Hartmann, Appellant.

      Appeal — absence of an oi'der denying a motion for a new trial — measure of damages on a wrongful discharge from employment.

    Where no order denying a motion for a new trial has been entered, its absence is not supplied by the motion itself or by a notice of appeal which states that the appeal is taken not only from a judgment, but from an order denying a motion for a new trial.
    A person under contract of employment for a definite term, who has been wrongfully discharged, and who, after endeavoring unsuccessfully to procure other employment, embarks in business on his own account, is entitled to have his damages measured by the amount of the agreed wages he was prevented from earning, less his profits in the business into which he has entered.
    Appeal by tlie defendant, Emil Hartmann, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 22d day of March, 1892, in favor of the plaintiff on a verdict rendered at the New York Circuit, “and from the order denying the defendant’s motion for a new trial.”

      Thomas J. MeKee, for the appellant.

      William II. Sage, for the respondent.
   O’Brien, J.:

The action was brought to recover damages by reason of the unlawful discharge of the plaintiff, who was employed by the defendant as his manager in the latter’s print works in New Jersey. The contract, which was in writing* provided for the receipt by plaintiff of forty per cent of the net profits of the business, which it was guaranteed should not be less than fifty dollars per week. The plaintiff entered into the defendant’s employ on May 1, 1890, and continued therein until August 16, 1890, receiving (there being no profits) fifty dollars a week, and it is admitted by the answer that on the latter date he was discharged.

The questions thus presented were, as to whether or not the discharge was wrongful, and, if so, the amount of plaintiff’s damages.

’With respect to the first question, upon the testimony, it was peculiarly one of fact, and so regarded by counsel for the defendant, who neither moved to dismiss the complaint nor asked for a direction in defendant’s favor, and upon the submission of the question to the jury, it was decided adversely to the defendant.

Whether such verdict was or was not against the weight of evidence is not presented for review. It is true that at the end of the case a motion for a new trial was made, but no order denying such motion was entered, and the absence of such an order is not supplied by the motion itself or by a notice of appeal, which, by its terms, states that the appeal is taken, not only from the judgment, but from the order denying the motion for a new trial, whereas by the record it does not appear that any order upon such motion was ever entered. Therefore, the only questions are those presented on an appeal from the judgment, including exceptions to rulings upon the trial. ,

In regard to the damages to which the plaintiff was entitled, the trial judge stated the rule as he regarded it, and no exception was taken thereto. But at the close of the charge, the defendant requested the submission of one proposition, namely, that by entering into business for himself the plaintiff abandoned the claim thenceforward on his contract.” The judge, in effect, refused to charge this proposition, by saying “ that he would not charge it, but would leave that to the jury ; ” and to this disposition of his request the defendant excepted.

In determining what force is to be attached to this request, it is-to be remembered that the plaintiff testified that, having unsuccessfully endeavored to get employment with one or the other of the only three print works in this country, he thereafter went into two different kinds of business on his own account, in both of which he was unsuccessful, and that the only money he had succeeded in earning since his discharge was about $300, resulting from his employment as a salesman under a commission in some cloth house, where it would appear he was engaged just prior to and at the time of the trial.

The question whether or not, by entering into business for himself, plaintiff abandoned the claim upon his contract is not a new one. It has been recently passed upon by the General Term of the Court of Common Pleas, in the case of Toplitz v. Ullman (N. Y. Law Jour. Dec. 20, 1892; 2 Misc. Rep. 130), and it was therein held that a person under contract of employment for a definite term, wrongfully discharged, who, after endeavoring unsuccessfully to procure other employment, embarks in business on his own account^ is entitled to have his damages measured by the amount of the agreed wages he was prevented from earning, less his share of the profits-in the business into which he had entered. We are satisfied with the reasoning of that case, and it would serve no useful purpose to go over the ground so carefully covered by that case, which is on all fours with the case at bar.

As there are no other exceptions, it follows that the judgment appealed from should be affirmed, with costs.

Yan Brunt, P. J., and Eollett, J., concurred.

Judgment affirmed, with costs.