text:
    Noah R. Collins and Another, Respondents, v. Charles Shaffer, Appellant.

      Justice of the pea,ce —power of, to issue a subpoena, and a commission — Gode of Civil Proc. § 2980 — depositions — improperly received in evidence — proof of the contents of account boohs.

    Under the provisions of the Code of Civil Procedure a justice of the peace is authorized to issue a subpoena and compel the attendance of a witness in the county in which an action is pending before him from an adjoining county.
    If a witness whose testimony is material is not within the county, or an adjoining county, the justice may issue a commission under section 2980 of the Code of Civil Procedure for the purpose of taking his testimony, and the power to issue such commission is not limited to a commission to be executed in the other counties of the State of New York, but it majr be issued to other States as well.
    Where depositions were taken by the plaintiff’s attorney from the office of the justice of the peace wherein they had been placed on file, and were retained by him until the day of the trial of the action in which the commission was issued, and the defendant’s attorney called upon the justice to see the depositions, but was unable to do so, the reception of such depositions in evidence upon the trial of such action is an error calling for the reversal of the judgment rendered therein against the party objecting to their reception in evidence.
    Upon the trial of an action brought to recover the value of goods sold and delivered, one of the plaintiffs in his deposition testified that he was a member of the firm composed of the plaintiffs, and had access to their books, and, in answer to the interrogatory, “ State to what persons the account hereto annexed is charged on said books, and what payment or payments have been made thereon, if any,” he testified, “ The account for the goods in controversy in this case is charged upon our books to the defendant, Charles Schaffer. The entries on August 5, 1889, were entered by me in sales book No. 20, page 183. * * * The entry of August 23, $11.88, was entered by me on-page 197, in sales book No. 20, and is in my handwriting.”
    The defendant’s counsel objected to the interrogatory as improper, and not the proper manner of proving- the books of account; that it was not the best evidence, and moved that the answer to the question be stricken out. The objection was overruled, and the portion of the answer above stated was allowed to remain. The books were not produced or read in evidence upon the trial.

      Held, that the denial of the defendant’s motion was error, as the method pursued was an improper way of proving the contents of the books of account.
    Appeal by the defendant, Charles Shaffer, from a judgment of the County Court of Niagara county in favor of the plaintiffs, entered in the office of the clerk of the county of Niagara on the 23d day of November, 1893, upon the decision of the court affirming the judgment of a justice of the peace of the city of Lockport, Niagara county.

      S. JE. Grmes, for the appellant.

      Joshua Gashill, for the respondents.
   Haight, J.:

This action was brought to recover a balance due on the purchase price of sundry goods, consisting of brandy, etc., alleged to have been sold and delivered to the defendant by the plaintiffs in the year 1889. The answer of the defendant denied the allegations of the complaint and alleged that at the time he was employed by S. M. Hodgkins as a bartender in his hotel at Coleville, Penn., and that the goods alleged to have been purchased by the defendant were purchased by Hodgkins.

Upon the joining of issue, the plaintiffs, upon affidavits, moved for a commission to take the testimony of Frank J. Collins and George R. Blakely, who severally reside in the city of Bradford, in the State of Pennsylvania. This motion was granted and a commission issued to "William B. Chapman of Bradford, Penn., to take the examination of the aforesaid witnesses upon interrogatories attached. The commission was executed and returned to the justice, and was by him received and filed August 30,1893. It appears that the commission was then taken by the plaintiffs’ attorney and held by him until the sixteenth day of September, the day to which the trial had been adjourned, and was by him then produced upon the trial and offered in evidence; that the defendant’s attorney called upon the justice and asked to see the commission, and was informed by him that it had been received; but that it had been borrowed by the plaintiffs’ attorney. When the commission was offered in evidence, the defendant objected to its reception upon the grounds: First, that it is incompetent; that there was no authority for the issuance of the commission out of this court; and, second, that the section of the Code (2985) had not been complied with, for the reason that the commission had not remained on file with the justice, but had been removed by the plaintiffs from his possession and control, and had not been open to inspection by the defendant. The objection was overruled and the depositions were received in evidence.

We think that the justice had power to issue the commission. Section 2980 of the Code of Civil Procedure provides that “Where the defendant has neglected to appear upon the return of. a summons, or has failed to answer the complaint, or where an issue of fact has been joined in an action; and it appears, by affidavit, upon the application of either party, that a witness, not within the county where the action is pending, or an adjoining county, is material in the prosecution or defense of the action, the justice may award a commission to one or more competent persons, authorizing them, or either of them, to examine the witness under oath, upon interrogatories to be settled by the justice, or by the written agreement of the parties, and indorsed upon or annexed to the commission; to take and certify the deposition of the witness; and to return the ■ same by mail, addressed to the justice.”

Under other provisions of the Code, the justice is authorized to issue a subpoena and compel the attendance of witnesses in the county in which the action is pending and from the adjoining county. If a witness, whose testimony is material, is not within the county, or an adjoining county, he may issue a commission for the purpose of taking his testimony, and we do not understand that such commission is limited to the other counties of the State, but may be issued to other States as well. This, we think, is apparent from the provisions of section 2987, which is as follows : “ Where the commission is executed within the State the commissioner, or, if there are two or more, a majority of them, have the same power to issue a subpoena, to swear a witness, and to compel his attendance, that a justice of the peace has, in an action pending before him.”

This section of the Code is, by the express terms thereof, limited. to the counties-within the State, but it only has application where the commission is to be executed within the State. The clause, “ where the commission is executed within the State,” would be surplusage if no commission issued by a Justice’s Court could be executed out of the State; and we think the inference to be drawn therefrom is that section 2980 should receive the broad construction which its language imports, and that is, that the power to issue a commission is not limited as to territory, except as to the county in which the action is pending, or an adjoining county. (Eaton v. North, 7 Barb. 631.)

As to the other ground of objection to the reception of the depositions in evidence, we have more trouble.

Section 2985 provides that: “ The justice, to whom the package containing the commission is transmitted by mail, must receive it from the post office, and open and file it, indorsing thereupon the date of his so doing. It must remain on file with him until the trial; but either party is entitled to inspect it on file.” Here we have the express command of the statute, that it must remain on file with the justice until the trial, and the right of either party to inspect it is given whilst it is on file. Our attention has not been called to any reported case in which this precise question has been . considered. Section 2986 provides that sections 902 and 903 shall apply to a commission issued out of a Justice’s Court. Those sections have reference to commissions issued out of courts of record for the examination of persons residing out of the State. The statute, as well as the practice in such cases, has always been to carefully guard the depositions taken from being tampered with, so that there could be no question as to their authenticity and genuineness. For this purpose the commissioner is required to subscribe his name upon each half sheet of paper upon which the testimony has been taken; he must attach his certificate and inclose the depositions under his seal, and address to the clerk of the court. If the packet is returned by an agent he must deliver it to the clerk, or a judge of the court, and must make an affidavit that he received it from the hands of the commissioner, and that it has not been opened or altered since he received it. The clerk or judge who receives it from the agent must open the packet and indorse thereupon, and sign a note of the time of the receipt and opening thereof, and immediately file it in the office of the clerk, together with the affidavit of the person who delivered it to him. If transmitted through the post office the clerk to whom it is addressed must receive it, open it and indorse thereupon, and sign a like note of the time of receipt and opening thereof, and immediately file it in his office. A commission must remain on file in the office of the clerk, unless otherwise provided by the stipulation of the parties, or unless . the court, by special order, directs it to be filed in the office of another clerk. The depositions are always open to the inspection of the parties,, either of whom is entitled to a copy of them, or of any part thereof-(Code Civ. Proc. §§ 902, 901, 906, 907, 909.)

It will thus be seen that the depositions are jealously guarded from the time they leave the hands of the commissioner down to the time of the trial, so that no person can mutilate, change or interfere with the testimony of the witnesses so taken.

In Jackson v. Hobby (20 Johns. 358) the commission was offered in evidence and objected to upon the ground that it had not been filed with the clerk. It was held that it was not entitled to be received in evidence. Platt, J., in delivering the opinion of the court, says: “ There is good reason for requiring the depositions to be actually filed before they are used as evidence. They are often prolix and voluminous, so that, without time to take a copy and fi> examine it deliberately, it is impossible to apprehend the testimony correctly or to take the proper exceptions. Resides, the party suing out the commission generally knows pretty accurately what his witnesses have sworn, before the commission is opened, and if he or his agent who brings back the commission may withhold it till after the trial has commenced, it would give such party an unfair advantage and enable him to surprise his adversary. It is the right of either party to move the court to suppress the depositions for fraud, partiality or irregularity, and this cannot be done at nisi jyrius nor until the depositions are filed.”

In The Oneida Mfg. Society v. Lawrence (4 Cow. 440) the judge or officer authorized to receive and open the commission had not certified or indorsed thereon his certificate as to the time of its reception, or by whose hand it was received. Its reception in evidence was objected to upon this ground and sustained. Savage, Ch. J., says that the deposition was properly rejected within the authority of Jackson v. Hobby.

In Dwindle v. Howland (1 Abb.Pr. 87) it was held that where a commission is returned by an agent his affidavit as prescribed by statute, that he received it from the hands of the commissioner, and that it has not been opened or altered since he received it, is indispensable to its reception in evidence. Clerke, J., after referring to the statute, says: Indeed, the whole article is very exact and minute in its precautions to prevent abuse and to insure the genuineness of the evidence. A rigorous compliance with its provisions was evidently intended, and particularly in regard to the return of the commission.”

As we have seen, the depositions were taken by the plaintiffs’ attorney from the office of the justice where they had been placed on file. They were retained by the attorney until the day of the trial. The defendant’s attorney called upon the justice to see the depositions, but was unable to do so. He was thus deprived of any opportunity to inspect the evidence, or to determine whether the questions had been properly or fully answered, or whether the commission had been executed in due form of law.

Ve have hesitated about declaring this to be reversible error, but upon mature reflection have concluded that the public interests require that the statute in this regard should be strictly followed, and that none of its provisions guarding the testimony of witnesses so taken should be disregarded by parties or their attorneys without destroying its character as evidence in their behalf.

The witness Collins, in his deposition, had testified that he was a = member of the firm of Collins & Co., and had access to their books. The eighth interrogatory is as follows: “ State to what persons the . account hereto annexed is charged on said books, and what payment or payments have' been made thereon, if any.” To this interrogatory he answered: “ The account for the goeds in controversy in this case is charged upon our books to the defendant, Charles Schaffer. The entries on August 5, 1889, were entered by me in sales book No. 20, page 183. * * * The entry of August 23, $11.88, was entered by me on page 197 in sales book No. 20, and is in my handwriting.”

Upon the trial the defendant’s counsel objected to the interrogatory as improper and not the proper manner to prove the book account, that it was not the best evidence, and moved that the answer to the question be stricken out. The objection was overruled and the portion of the answer stated was allowed to remain. The books were not produced or read in evidence, and we do not understand that their contents could be proved in this way.

The judgment of the County Court and that of the justice should be reversed, with costs.

Dwight, P. J., Lewis and Bradley,. JJ., concurred.

Judgment of the County Court of Niagara county and of the Justices’ Court reversed, with costs.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    David J. Kirkpatrick, Respondent, v. James E. Briggs, Appellant.

      Negligence — damages for personal injuries — deda/t'ations of third persons as to leaving a trap door open being ca/t'eless — res gestas.

    In an action brought to recover damages for personal injuries alleged to have been sustained by reason of the plaintiff having fallen through an open trap door of the defendant (where the negligence of the defendant is a question sharply litigated upon the trial), the declarations of third persons, as to whether the act of leaving the trap door open was careless or not, are but an expression of opinion on their part, and inadmissible in evidence.
    Where such declarations were not made until after the accident had happened, and the plaintiff had been helped out of the place wherein he had fallen, they form no part of the res gestas, and, when the question of the defendant’s negligence is one of fact submitted to the jury, it cannot be determined that the admission of such evidence did no harm to the party against whom it was received, and the admission thereof requires the reversal of the judgment.
    Appeal by the defendant, James E. Briggs, 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 T7th day of August, 1893, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the l'Tth day of August, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      O harles F. Miller, for the appellant.

      Fugene Van Voorhis, for the respondent.
   Haight, J.:

This action was brought to recover damages for personal injuries.

It is claimed that on the 6th day of January, 1892, the plaintiff was walking along the south sidewalk of Central avenue in the city of Rochester in front of the Brackett House; that it was storming heavily at the .time and he had his umbrella up; that the defendant’s basement extended under the sidewalk, through which there was an opening covered by trap doors; that at the time one of the doors was open and lying over fiat upon the sidewalk; that the plaintiff in passing along the walk stepped into the opening, receiving injuries to recover the damages resulting from which this action was brought.

Hpon the trial, after the plaintiff had given evidence tending to support the allegations of the complaint, the defendant called as a witness Thomas Burk, who was a servant in his employ, who testified that the first thing he saw after the accident was his son picking the plaintiff up. He then asked the plaintiff, "What did you go in there for?” and the plaintiff answered, “You must excuse me, I didn’t know where I was going.”

James Burk, the son of the former witness, who was also in the employ of the defendant, testified that he helped the plaintiff out, brushed him off, and that he then walked away without assistance ; that he asked him if he was hurt, and the plaintiff said, “ No, that is nothing; ” that as the plaintiff walked down the street toward the opening before tbe accident he said to him, “ Be careful of the opening, you may step in,” and that the plaintiff made no reply.

The plaintiff was then recalled and contradicted the testimony of the Burks as to the statements made by them to him and his replies thereto. He further testified that a man with an ulster came up after he was helped out of the hole and said to the man with the overalls on, which was the younger Burk, “ That is a very careless way to leave that, young fellow,” and that then the man with the overalls on put the trap door down.

Defendant’s counsel moved to strike out the testimony of the plaintiff as to the declarations of the man with the ulster. The court declined to entertain the motion; thereupon, at the close of the charge, the defendant’s counsel requested the court to instruct the jury to disregard that evidence. The court declined to so instruct the jury and the defendant’s counsel took an exception.

We do not understand that this evidence was competent. The negligence of the defendant appears to have been a question sharply litigated upon the trial. The declaration of third persons as to whether the act of leaving the trap door open was careless or not was but an expression of an opinion and in this instance was also hearsay. It was not made until after the accident had happened and the plaintiff had been helped out. It was no part of the res gestee. (Davis v. Gallagher, 124 N. Y. 487-492.)

The trial court appears to have been of the opinion that the evidence was competent in rebuttal, but we do not so understand it. Undoubtedly the plaintiff had the right to controvert the testimony given by the Burks. This he did, but the Burks had testified to nothing in reference to the declarations of other persons than the plaintiff, and we fail to see how or in what manner the expression of an opinion by the man with an ulster tends in any way to contradict the testimony of the Burks as to what was said on the occasion referred to.

It is now contended that the evidence did the defendant no harm; that it was negligence on the part of the defendant to leave the trap door open in the manner described. If we could so determine as a matter of law possibly this contention might be sustained, but whether it was negligence or not appears to have been a question of fact which the court submitted to the jury. If the opening was guarded, or if the defendant’s servants stood by warning persons traveling upon the walk, as they claim to have done, there might have been no negligence on the part of the defendant, but it appears that these statements were controverted and it thus became a question of fact for the jury.

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

Dwight, P. J., Lewis and Bradley, JJ., concurred.

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


author: Haight, J. :

text:
    In the Matter of the Judicial Settlement of the Accounts of George S. Young and Another, as Executors, etc., of Amos Hurlbutt, Deceased.

      Will■ — -legacy resting in a direction to sell and distribute — vesting of, at the testator’s death.

    The primary canon of construction of a will is chat the intention of the testator shall be ascertained and followed; subordinate to which are rules which have been formulated to aid the courts in ascertaining such intent. Among such rules is one to the effect that where there is no language in a will importing a gift, except in the direction to convert real estate into money and make distribution thereof, time is annexed to the substance of the gift and the vesting is postponed until the time of payment. An exception to such rule exists in the case where the enjoyment of the legacy is postponed to accommodate the estate or to enable it to meet another burden first imposed upon it, in which event the legacy will be regarded as vested as of the date of the testator’s death.
    The second clause of a will was as follows: “I hereby ordain and require the sale of my farm as soon after my decease as it can be done without undue sacrifice, and out of the proceeds, of such sale 84,000 are to be reserved for the use of my aforesaid wife in the purchase of another home, or if she shall choose not to so purchase, or choose a place of less value, then the whole of the money, or balance left after purchase, shall be placed at interest and the profits arising therefrom shall be hers during life, and after her decease this amount of §4,000, or the premises my said wife may purchase with any balance of money left after purchase, shall, after her decease, be equally divided among my children, Amos J. Hurlbutt, Mary Tift and Ellen Close.”

      Held, that the fund of 84,000, or the real estate purchased therewith, vested in the children of the testator at the time of his death subject to the use thereof by his widow for her life.

      Appeal by Amos J. ITurlbutt, personally and as administrator, etc., of Mary ITurlbutt, deceased, from a decree of the Surrogate’s Court of Cayuga county, entered in the office of the clerk of the Cayuga County Surrogate’s Court on the 23d day of February, 1894, judicially settling and allowing the accounts of the executors of the estate of Amos Hurlbutt, deceased.

      S. Edwin Day, for Amos J. Hurlbutt, personally and as administrator, appellant.

      H. V. Idowland, for executors, respondents.
   Haight, J. :

The testator died December 10, 1882, leaving a last will and testament which has been duly proved and admitted to probate, the second clause of which provides as follows:

I hereby ordain and require the sale of my farm as soon after my decease as it can be done without undue sacrifice, and out of the proceeds of such sale $4,000 are to be reserved for the use of my aforesaid wife in the purchase of another home, or if she shall choose not to so purchase, or choose a place of less value, then the whole of the money, or balance left after purchase, shall be placed at interest and the profits arising therefrom shall he hers during life, and after her decease this amount of $4,000, or the premises my said wife may purchase with any balance of money left after purchase, shall, after her decease, be equally divided among my children, Amos J. Hurlbutt, Mary Tift and Ellen Close.”

The testator left him surviving Mary ITurlbutt, his widow, and the three children named in his will. The farm was sold in accordance with his direction, and of the money derived therefrom,$4,000 was reserved and invested in a mortgage for the benefit of the-widow during her life. She died on the 9th day of September, 1893, but before her death, and in the year 1890, Mary Tift died, leaving a will, in which she devised and bequeathed all of her property to her husband, John Tift. The sole question presented in this case is as to whether John Tift is entitled to any portion of the $4,000, and this is dependent on the question as to whether that fund vested in the legatees on the death of the testator, or upon the death of the widow. The question thus presented is not free from difficulty, and there may be some trouble in harmonizing the cases upon the subject.

The primary canon of construction of a will is that the intention of the testator shall be ascertained and followed. Subordinate to this canon are certain rules which have been formulated to aid the courts in ascertaining such intent, among which is one invoked by the appellant, to the effect that where there is no language importing a gift except in the direction to convert the real estate into money and make distribution, time is annexed to the substance of the gift, and the vesting is postponed until the time of payment. (Leake v. Robinson, 2 Merr. 387 ; Warner v. Durant, 76 N. Y. 133-136 ; Delaney v. McCormack, 88 id. 174-183 ; Smith v. Edwards, Id. 92; Bowditch v. Ayrault, 138 id. 222: Delafield v. Shipman, 103 id. 463-467.)

Under this rule it is claimed that the testator has not in express language or words given the $4,000 to his children; that he has only directed its division among them after the decease of his widow. If the provision contained nothing more the appellant’s contention must prevail. But the rule invoked has exceptions and limitations, one of which it becomes necessary to consider, and that is, that although the will contains no other gift than as indicated by ■ the direction to payor distribute in the future, yet if the enjoyment of the legacy is postponed to accommodate the estate, or to enable it to meet another burden first imposed upon it, the legacy will be regarded as vested as of the date of the testator’s death. (1 Jarman on Wills, 835 ; Packam v. Gregory, 4 Hare, 396 ; Loder v. Hatfield, 71 N. Y. 92-100; Coit v. Rolston, 44 Hun, 548-550.)

Under the will the testator disposed of all of his property. That which was not given or set apart for the use of the widow was given to the children. The $4,000, as we have seen, was reserved for the use of the widow during her life. If it was not invested in a home for her it was to be placed at interest and the interest during her life was given to her; and after her decease the principal was to be divided among the children. We thus have a postponement of the enjoyment of the fund by the children during the life of the widow; iu other words, a postponement to meet another , burden first imposed upon it. Under this rule the testator must be deemed to have intended that the $4,000 should vest in his children subject to the life use thereof by the widow, and that the payment thereof was postj>oned until her decease so as to enable the estate to first meet that burden.

The decree appealed from should be affirmed, without costs of this appeal to either party.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Decree of the Surrogate’s Court of Cayuga county appealed from affirmed, without costs of this appeal to either party.


text:
    Joseph Smith, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.

      Damages for personal injuries — - liability of an employer for the explosion of torpedoes by his employee — burden of proof that the act of the employee was within the scope of his employment.

    Where a station agent, acting within the scope of his employment and in the performance of a duty imposed upon him by the railroad company, his employer, explodes torpedoes for the purpose of signaling a train, in the vicinity of a station where persons were standing on the platform, the railroad company is liable for injuries resulting therefrom, if such act was negligent and dangerous.
    If in so doing the station agent went outside of his employment in order to effect a purpose of his own and exploded the torpedoes for his own amusement, and not for the purpose of signaling a train, the company would not be liable.
    It,rests upon the plaintiff, in an action brought to recover damages caused by the explosion of a torpedo, to show that the person exploding the same was acting within the scope of his employment by the railroad company against which the action was brought.
    Motion by the plaintiff, Joseph Smith, for a new trial on a (¡ase containing exceptions, ordered to be heard at the General Term in the first instance upon the dismissal of the complaint directed by the court after a trial at the Cayuga Circuit on the 6th day of October, 1893, before the court and a jury.

      II. V. Holland, for the plaintiff.

      J. W. Hunvoell, for the defendant.
   Haight, J.:

This action was brought to recover the damages sustained by the plaintiff on the 23d day of July, 1891, at the "West Shore railroad station at Port Byron, N. Y., by reason of the alleged negligence of the defendant’s station agent at that place.

It appears from the evidence that the plaintiff was standing upon the platform of the station; that a train known as the local freight had arrived, stopped, switched some cars and was about starting on its way when H. S. Biker, the defendant’s station agent, stepped out and placed two torpedoes upon the track under one of the freight cars in the central part of the train, and then ran back to the station house. The train had just begun to move, and as the rear wheels of the freight car passed over the torpedoes an explosion occurred causing some sharp fragment to pierce the plaintiff’s leg, inflicting a serious injury.

The plaintiff first testified that the train did not stop after the explosion, but continued on its way, but he subsecpiently testified that it did stop for a time. But no evidence was submitted showing that any communication took place between the station agent and the persons in charge of the train thereafter. The plaintiff read in evidence the rules under which the West Shore railroad was operated at that time, providing for the use of signals, in which it is provided that:

“ 30. An explosive cap or torpedo placed on the top of the rail is a signal to be used in addition to the regular signals. The explosion of one torpedo is a signal to stop immediately. The explosion of two torpedoes is a signal to reduce speed immediately and look out for a danger signal.”

“ 77. The torpedoes must not be placed near stations or road crossings where persons are liable to be injured by them.

“ 78. All signals must be used strictly in accordance with the rules, and trainmen and enginemen must keep a constant lookout for signals.”

This is, in substance, the evidence presented on behalf of the plaintiff. From it we are asked to assume that the station agent was attempting to signal the train to stop by exploding the torpedoes; that he was thus acting within the scope of his employment, but in the use of the torpedoes, under the circumstances, at that place, he "was guilty of negligence, and consequently the plaintiff was entitled to recover.

On behalf of the defendant evidence was given to the effect that torpedoes were not furnished to station agents for their use; that they were not permitted to use them in the vicinity of a depot; that there was no occasion for signaling the train at the time of the accident; that it was not signaled and did not stop after it had started from the station. Riker, the station agent, testified that the torpedoes used by him were thrown off by conductors of passing trains as a make-weight for the paper containing the numbers of their trains; that he picked them up, and as the train started he put them upon the track for the purpose of hearing the explosion and with no occasion for or object in view of signaling the train.

It is thus apparent that the only question in the case was as to whether the station agent in doing what he did was acting within the scope of his employment in the performance of a duty imposed upon !him by the company. If so, and if it was negligent and dangerous to explode the torpedoes in the vicinity of the station when persons were standing upon the platform, the company is liable, but if by doing what he did he went outside of his employment in order to effect a purpose of his own, in exploding the torpedoes for his own amusement and not for the purpose of signaling the train, then the company would not be liable. (Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122; Mott v. Consumers’ Ice Co., 73 id. 543-547; Mulligan v. The N. Y. & Rockaway Beach Ry. Co., 129 id. 506; Mars v. D. & H. C. Co., 54 Hun, 628; Finley v. Hudson Electric Ry. Co., 64 id. 373.)

It may be that Riker was so far an-interested witness that his credibility was involved, which could only be passed upon by the jury. But, as we have seen, the plaintiff showed from the rules of the company that the explosion of torpedoes near stations and road-crossings, where persons were liable to be injured, was prohibited. He has not shown that there was any occasion or reason for signaling the train on this occasion, or that the torpedoes were exploded for that purpose. It appears that the torpedoes were placed upon the tr}ack close together, sq that the explosion of one instantly followed the other. This was not a signal under the regulations of the company. In case a signal was to be given to slow up and proceed with caution two torpedoes would be placed upon the track, but several rails apart so that there would be two distinct reports, several seconds intervening, and if it was desired to bring a train to a stand one torpedo only would be used. We are, therefore, inclined to the view that the plaintiff failed to show that Riker was acting within the scope of his employment in exploding the torpedoes.

The motion for a new trial should be denied and judgment ordered for the defendant upon the nonsuit.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

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


author: Lewis, J.:

text:
    Town of Sardinia, Respondent, v. David Butler, Appellant.

      Notice of an encroachment upon a highway, under chapter 568 1890— when sufficient— highway presumed to home been laid out on its true line — allegation of a highway by user does not ps'eclude proof of a recorded highway.

    A notice served under chapter 568 of the Laws of 1890, upon a person who had neglected to remove an encroachment made hy him upon a highway, after stating in substance that the highway commissioner — having ascertained that the highway was encroached upon on the north side along such person’s land, by fences erected by him or by some former occupant, which formed a part of the inclosure of said land — had caused a survey to be made and ascertained the northerly bounds thereof along such person’s land, provided in terms, “and that said fence or fences encroaches upon said highway along the whole of your said land to the westerly line thereof at different distances, ranging from seven feet four inches to fifteen feet (as more particularly appears by reference to a map thereof, now in my possession, and which you are at liberty to inspect at any time), and that all the narrow strip or piece of land which lies under said fence or fences and between said fence or fences and the northerly line of said highway is a part of the public highway aforesaid,” following which was a direction to remove the fence within twenty days.

      Held, that the description of the encroachment therein contained was, under the circumstances, a compliance with the statute, which simply requires a description specifying the extent and location of the encroachment;
    That the purpose of chapter 568 of the Laws of 1890, in requiring notice to be served upon a person encroaching upon a highway, was to inform him of the particulars of the encroachment, so that he could, if he desired, remove the same.
    The presumption is, after a lapse of twenty-five years, that a highway was laid out upon its true line as contained in the order laying out the same.

      In an action brought to recover the penalty provided by statute for an encroachment upon a highway, where the plaintiff alleges the existence of a highway by user simply, he can recover under such complaint as well for a recorded highway as for one created by user.
    Appeal by tlie defendant, David Butler, from a judgment of the Supreme Court in favor of the plaintiff, entered in tlie office of tbe clerk of tlie county of Erie on the 22d day of August, 1893, upon tlie verdict of a jury rendered’ after a trial at tlie Erie Circuit, and also from an order entered in said clerk’s office on the 22d day of August, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      A. J. Knight, for the appellant.

      Willard H. Tichnor, for the respondent.
   Lewis, J.:

This action was originally commenced in a Justice’s Court to recover the penalty provided by section 105 of chapter 568 of the Laws of 1890, to be recovered of a person who shall neglect to remove an encroachment made by him upon a highway, after he shall have been duly notified to remove the same.

The defendant interposed the plea of title to the land, and thereupon the Justice Court action was discontinued and this action was thereafter commenced in this court.

The defendant was the owner of a farm upon the north side of the highway in question. The highway was laid out and recorded in the year 1822; it was worked and used as a three-rod road from the time it was opened down to the time of the commencement of this controversy, in all some fifty or sixty years.

The defendant purchased his farm about the year 1866, and along about 1872 he caused a survey of this highway to be made, and finding, as he supposed, that it was not laid out according to the original survey, he caused his road fence to be moved to the south, out into the road along the entire length of his farm, upon a line where he claimed the true survey located the north line of the highway.

The highway, as it was originally laid out, was worked and used by the public. Its boundaries along opposite the defendant’s farm had become clearly marked and designated by fences, dwelling houses and other improvements located along and contiguous to the road. The highway commissioner served upon the defendant a notice to remove the encroachment, which the defendant neglected to do, and this action was commenced. The plaintiff recovered a verdict for the twenty-five dollars penalty provided for in the act.

The principal question raised by the defendant is as to the sufficiency of the notice served upon him to remove the encroachment. The statute provides that “the commissioners of highways shall serve upon the owner or occupant of lands adjoining that part of a highway within their town in which any obstruction or encroachment may exist, a notice specifying the extent and location of such obstruction or encroachment, and directing such owner or occupant to remove the same within a specified time, not more than sixty days after the service of the notice ” (§ 105, chap. 568, Laws of 1890), and provides a penalty of twenty-five dollars for a neglect or refusal to remove the obstruction.

As stated, the boundaries of the highway had been established for many years on the line of the original survey and were plainly to be seen. The defendant was well acquainted with them; believing them to be erroneously located he caused the fences complained of to be moved into the highway.

The notice served upon him was, in substance, that the highway commissioner, having ascertained that the highway was encroached upon, on the north side along defendant’s lands, by fence or fences erected by him, or by some former occupant, and which forms a part of the inclosure of said land, that he had caused a survey to be made and ascertained the northerly bounds thereof along the defendant’s land, “ and that said fence or fences encroaches upon said highway along the whole of your said land to the westerly line thereof at different distances, ranging from seven feet four inches to fifteen feet (as more particularly appears by reference to a map thereof, now in my possession, and which you are at liberty to inspect at any time), and that all the narrow strip or piece of land which lies under said fence or fences and between said fence or fences and the northerly line of said highway is a part of the public highway aforesaid.” And then follows a direction to remove the fence within twenty days.

The defendant claims that the extent and location of the encroachment were not sufficiently definite. The purpose of the statute in requiring the notice obviously is to inform the party who, it is claimed, has encroached upon a highway of the particulars of the encroachment, so that he can, if he desires, remove it. This notice accurately describes the extent of the encroachment so far as concerns its length; he is told that it extends the whole length of his farm, which was, as appears from the evidence, about 250 rods.

The width of the encroachment is stated to be from seven feet four inches to fifteen feet. While the notice was somewhat indefinite as to the extent of the encroachment, it would have been impracticable to have accurately mentioned the exact distances for the entire length of the defendant’s farm; the defendant was informed by the notice that a map giving a more particular description of the encroachment was in the hands of the highway commissioner of the town, which he was at liberty to see at any time if he wished so to do. This map was produced upon the argument. It contains an accurate, detailed description of the extent of the encroachment.

It may be true, as claimed by the counsel, that the defendant was under no legal obligations to visit the commissioner with a view of inspecting the map. He was at liberty, however, so to do, and it is entirely apparent from the record before us that he was not in any manner misled or influenced in his action by the insufficiency of the description in the notice, his claim being that the true location of the north line of the road was upon the line of the fence as built by him.

If he had desired to comply with the directions in the notice he could have done so, for he knew the location of the fence as it was before he moved it. We are of the opinion that the description of the encroachment in the notice, in view of the information the defendant had of the old line, and in view of the information that he was at liberty to obtain, by an inspection of the map, should be held, under the circumstances, to have been a compliance with the statute.

Under the former act, providing for the notice of obstructions upon highways, the commissioner was required to specify the breadth of the road originally intended, the extent of the obstruction or encroachment, and the place or places where the same shall be.

It was held in Spicer v. Slade (9 Johns. 358); Doughty v. Brill (36 Barb. 494), and Mott v. Commissioners of Highways of Rush (2 Hill, 472) that a failure to give a description of the encroachment in the notice was fatal to the plaintiff’s right to recover.

There is, it will be observed, a difference between the requirements' of the notice in the two acts. Under the act of 1890 it is not necessary to mention the' width of the road originally intended. Under the former act the extent of the obstruction or encroachment and the place or places where the same shall be, were required to be stated. Under the present act the notice simply requires a description, specifying the extent and location of such encroachment.

The complaint alleged that .it had become a highway by user for more than twenty-five years prior to the wrongful acts-of the' defendant, of the width of at least three rods, and that by the constant and continuous use thereof by the public for said period the town had acquired an easement therein, which was well known to the defendant.

The defendant, by his answer, denied each and every allegation • of the complaint, and further denied that the place or places of said encroachment was a part of a highway or had ever been a highway ; that the fences and alleged obstructions or encroachments along said highway are upon the lands of the defendant, and not within the limits of any highway, and denied that the plaintiff had any right of way thereon.

The plaintiff established the existence of the highway by evidence of user simply. The defendant produced record evidence of the survey and laying out of the road in 1822, and thereupon claimed that the burden-was on the plaintiff to show, by affirmative evidence, that the highway was laid out according to the survey, and further, that as the plaintiff had alleged in its complaint a highway by user, it could not recover if the jury should find that it was a recorded road.

The court held that the presumption was, after such a lapse of time, that the highway was upon the true line as contained in the order, and that the plaintiff could recover under the complaint as well for a recorded highway as for one created by user. The rulings, we think, were right. "We have examined the exceptions of the appellanfc to the admission and rejection of evidence, and to the charge of the court, and find nothing in them calling for a reversal of the judgment.

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Haight, J., concurred; Bradley, J., not voting.

Judgment and order appealed from affirmed.


text:
    Henry S. Riegle, Respondent, v. Hiram E. Bratt, Appellant.

      Purchase by a husband in his wifets presence — evidence of the husband against his wife’s executor — Oode of Givil Procedv/re, § 839 — bill of sale and railroad receipts competent to show the purchase.

    The mere fact that a man’s wife was present when certain personal property was purchased does not render his testimony in regard to the purchase thereof inadmissible, under section 839 of the Code of Civil Procedure, in an action brought by him against the executor of his wife’s estate to recover the property so purchased, although the claim of the defendant in such action is that the property in question was purchased by the deceased, and the husband testified, upon cross-examination, that he borrowed of his wife a portion of the money used in paying for such property.
    The burden is upon the party objecting to the reception of testimony, given by an interested witness upon the trial of an action, upon the ground that it is inadmissible under section 839 of the Oode of Civil Procedure, to show that the witness is not qualified to give the testimony objected to.
    Where an interested witness, upon his cross-examination, in an action brought by him against the executors of the estate of his deceased wife, testified that he borrowed money of his "deceased wife, which was used in part to pay for certain property to recover which such action was brought, it is not error to allow such person to testify upon his redirect examination that he had repaid such money.
    Upon the trial of an action, where the question as to who had purchased certain property is in issue, the bill of sale thereof and the railroad receipts in regard to the same are parts of the transactions relating to the purchase of the property, and while not very material evidence the admission thereof is not error.
    Appeal by the defendant, Hiram E. Bratt, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in tbe office of the clerk of the county of Erie on the 18th dav of November, 1893, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of November, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Ohcurles F. Tabor, for the appellant.

      George W. Gothrcm, for the respondent.
   Lewis, J.:

Laura E. Riegle, the wife of the plaintiff, died at the town of Clarence, county of Erie, leaving a last will and testament, by which she bequeathed to the plaintiff $500 and her gold watch and chain; the property in question, consisting of an organ and some articles of furniture, she bequeathed to some female friends, and appointed the defendant executor of her will.

The defendant qualified as such executor and took possession of the property involved in this action, and the plaintiff thereupon brought this action against the defendant for conversion thereof. The defendant interposed an answer claiming title thereto as executor of the will of the testatrix.

The questions involved in this appeal arise upon the rulings of the court in the admission and rejection of evidence. The plaintiff, to maintain his action, called himself as a witness and the following testimony was given and proceedings had: Q. “ Did you purchase an organ of Denton, Cottier and Daniels ? ” Objected to by defendant’s counsel on the ground that it involved a transaction between this plaintiff and the testatrix of the defendant, the deceased, and that this party, being a party in interest, cannot, under section 829 of the Code, testify to a transaction which involves relations between him and the deceased. Objection overruled and exception taken. A. “ Yes, sir; it was in April, 1891; it was an Estey organ, and the price was $40; I paid for it and received the organ and took it home that day. My home at that time was Clarence. I took the organ to my father’s house at that time. It was on the 14th day of December, 1892, where I lived in the town of Clarence in my own house.” * * * Q. “Did you purchase some household furniture from Iiersee & Co. of this city?” Same objection and same ruling.

The witness testified that he purchased the furniture in question, and stated: “ I left it there a short time ; I paid for the furniture and received this bill from the firm.” Paper shown witness. The pajier was headed “Mr. H. S. Riegle, Clarence Center, N. Y. Bought of Hersee & Co.,” and then followed the items of the furniture.

Plaintiff’s counsel offered the bill referred to in evidence. It was objected to by the defendant’s counsel on the ground that it was simply the declaration in writing of Hersee & Co.

The objection was overruled, the paper was received in evidence, and exception taken.

The witness further testified that the furniture was sent to his home by rail, and he was permitted, under objection of the defendant, to read the bill of lading in .evidence showing that it was billed to him.

• The witness on being cross-examined testified that the deceased was his wife ; that after- their marriage they lived with the witness’ father; that he got some money from his father when he came to Buffalo to purchase the organ, after they were married; that he and his wife and his wife’s adopted mother came together and picked out the furniture, but did not buy it that day for the reason that he did not have money enough with him to jiay for it; that he and his wife subsequently came with the wife’s adopted father, and that he bought the furniture for seventy-five dollars ; that his wife was with him all the time, and that on that day she drew out of the bank about $890, which she delivered to the plaintiff; that he took out forty dollars or fifty dollars, and with that and some money of his own he paid for the furniture, and that the balance of the money, with the consent of his wife, he delivered to his own father, with the exception of some of it which his wife retained; that he paid for the furniture right there when his wife was present; that the furniture was used in the house where he and his wife lived until she died; that he paid seventy-five dollars for the furniture; forty dollars of it was his own money, and fifteen dollars or twenty dollars of it he got from his wife.

Thereupon the defendant’s counsel moved to strike out all the evidence of the witness upon his direct examination as to the purchase of the property, on the ground that it involved a personal transaction with the deceased, it then appearing that the defendant claimed the property as executor.

The motion was denied, and the defendant excepted.

Plaintiffs counsel then asked the witness the question: “ Q. When defendant’s counsel asked you if you paid for the furniture, you stated your wife stood near by; that don’t answer the question which he put to you, whether you paid for the furniture, or whether she paid for it ? ”

Defendant’s counsel objected, on the ground that it involved a transaction with the deceased. ■

The objection was overruled, and the witness answered: I paid for it.” “ Q. Did you repay your wife the moneys you received from her that were used in paying on this organ, and also the moneys that you received from her, and paid on the furniture ? ”

The same objection was’interposed, and the court said: “Either the whole of it has got to be stricken out, or he has got the right to show that he has repaid it. One or the other.”

Ruling reserved, and the defendant excepted. “A. Tes, sir; I was at my home on the 14th of December, 1892. Mr. Bratt came there. He removed the articles of furniture mentioned in this bill and the organ. I forbid him to move them, but he took them notwithstanding.”

The witness appears to have answered the question notwithstanding the court reserved its decision as to its admissibility, and the defendant neglected to move to strike out the answer.

The plaintiff called other witnesses, who gave evidence tending to show that the plaintiff paid for the organ, and as to the value of the property in controversy, and he then rested his case.

The defendant introduced evidence tending to show that the deceased purchased the property.

The court, in charging the jury, submitted to them the question as to whether the plaintiff or his wife made the purchase. The jury found for the plaintiff the value of the property.

There was nothing in the testimony given by the plaintiff upon his direct examination tending to show that he ever had a wife, or that the defendant was the executor of his wife’s will. His evidence, therefore, so far as it then appeared, was competent.

The fact that rt was subsequently made to appear that his wife was present on the occasion did not render the reception of the testimony erroneous. (Whitman v. Foley, 125 N. Y. 652.)

Upon his cross-examination it was disclosed that his wife was present with him at the time of making the purchases of the property in suit, and that he borrowed of her a portion of the money used in paying for the property. The borrowing of the money and the purchasing of the property were two different transactions.

The transactions out of which the plaintiff claimed to become the purchaser of the property were between himself and the vendors of the property. The transaction upon which the defendant relies to exclude the plaintiff’s evidence consisted of the act of his borrowing money of his wife. That had occurred before the transactions with the vendors of the property. The transactions did not necessarily have any relation to each other. The evidence showing the borrowing of the money was called out by the defendant. The burden was upon the defendant to show the disqualification of the witness to give the testimony. (Whitman v. Foley, supra.)

The defendant, at the close of the cross-examination of the plaintiff, moved to strike out all of his direct evidence as to the purchase of the property, on the ground that it then appeared that it was a personal transaction with the deceased. The motion was denied and the defendant excepted. The motion should have been granted if, by the cross-examination, it had been established that the purchase of the furniture was a personal transaction between the plaintiff and the deceased. (Mills v. Kemochan, Adm., 3 N. Y. St. Repr. 152; Knowles v. Erwin, 5 id. 421.)

We incline to the opinion that it was not error for the court to refuse to strike out the evidence, and that it was proper to submit the question to the jury as to who purchased the property.

The defendant having called out from the plaintiff the fact that' he borrowed money of his wife, which was used in the purchase of the property, it was not error to allow him to testify that he had repaid the money.

The bill of sale and the railroad receipts were parts of the transactions relating to the purchase of the goods by the plaintiff, and while they were not very material evidence, we do not think it was error to admit them.

We have examined the other exceptions of the defendant and find nothing calling for a new' trial.

The judgment and order appealed from should be affirmed.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Judgment and order of the Erie County Court appealed from, affirmed, with costs.


text:
    George W. Luce, as Administrator, etc., of E. H. Little, Deceased, Respondent, v. Oscar A. Burchard and Others, Respondents, and Sarah J. Decker and Another, Appellants.

      Will failing to promde for an unborn child — how far valid — a life tenant cannot be compelled to take a gross mm —• rule 71.
    The will of a testatrix which fails to provide for her child horn after the making of the will is in all respects valid, except as to such child, which succeeds to the same portion of the estate he would have taken in case of the intestacy of his parent.
    There is no rule of law hy which a life tenant can he compelled to take a gross sum in lieu of the use of a trust fund during her life.
    Under rule 71 of the General Rules of Practice a tenant for life, hy the curtesy, or in dower, cannot he compelled to accept a gross sum in lieu of the estate for life.
    Appeal by the defendants, Sarah J. Decker and another, from an order of the County Court of Monroe county, entered in the office of the clerk of the county of Monroe on the 16th day of November, 1893, modifying and confirming as modified the report of a referee in surplus money proceedings.

      F. B. Fenner, guardian ad litem, for infant defendant, Jane A. Burchard, and counsel for Sarah J. Decker, appellants.

      H. B. Hallock, for P. J. Costello, respondent.

      Howard H. Widener, for respondent Mary A. Burchard.
   Lewis, J.:

This is a controversy over surplus moneys arising from the sale under foreclosure of a mortgage.

Carrie J. Decker Bnrchard was the wife of the defendant Oscar A. Bnrchard, and died at the- city of Rochester, leaving a last will and testament, which was made and executed in the year 1885 after her marriage, and prior to the birth of her only heir at law, Jane A. Bnrchard, one of the appellants.

It is provided by the will: “ First, after all my lawful debts are paid and discharged, I give and devise my house and lot, situated upon Champlain street, in the city of Rochester, Monroe county, New York, to mv mother, Sarah Jane Decker, to use, occupy and enjoy the same for and during the term of her natural life. Second, I hereby give and devise to my husband, Oscar A. Bnrchard, my said house and lot upon the termination of such life estate, in case he shall survive my said mother ; but if my said mother shall survive him I give and devise the said house and lot to her and her heirs absolutely. The foregoing devise to my said husband is upon the express condition that he shall furnish to my said mother during her life such reasonable support, maintenance and care as she may require.” She appointed her husband executor of the will. No mention was made in her will of the child about to be born to the testatrix. After making the will, and on the 14th day of February, 1885, the testatrix gave birth to the appellant Jane A. Burchard, and died leaving her surviving such issue. The will was duly admitted to probate, and thereafter, upon a sale on the foreclosure of a mortgage, which was a lien upon the property- at the time of the making of the will, there arose a surplus of $504.22, and proceedings were instituted to determine the priority of claims to said surplus. The respondents, who wrere judgment creditors of the husband of the testatrix, made claim to a portion of the fund under their judgments. And the proceeding was duly referred, and the referee, after hearing the proofs, reported, among other facts, that the husband of the testatrix had, although often requested, failed and neglected to furnish any support, maintenance and care for the mother or child of the testatrix, and that lie had totally abandoned them, and he reported as his conclusion of law that the husband had forfeited all claim as tenant by the curtesy because of his neglect to provide for the mother as was provided by the will; that Sarah J. Decker, after the payment of the expenses of the proceeding, would be entitled to the interest on said sum during the period of her natural life unless slie should survive the death of the husband,. Oscar A. Burchard; that if Oscar A. Burchard should die before the death of Sarah J. Decker, that the fund would belong to Jane A. Burchard. Upon motion to the County Court of Monroe county for a confirmation of the referee’s report, it was confirmed, but with the following modification: It was adjudged that the defendant Oscar A. Burchard was entitled as tenant by the curtesy to the use and income of said fund after the death of the life tenant,. Sarah J. Decker; that the husband’s interest was suspended during the life of the mother; that the judgment creditors of the husband were entitled to an immediate appropriation of his present interest in the fund, which, computed according to the -life tables, was. adjudged to be, after deducting costs and disbursements, $103.56, and that the respondent Costello was entitled to have applied therefrom in payment of her judgment the sum of $91.48, and that the judgment creditor, Mary A. Burchard, was entitled to $12.08, to be applied upon her judgment; that there should be paid to the appellant Sarah J. Decker for her life estate in said fund the sum of $194.79, and that the balance, amounting to $165.87, be paid to the appellant Sarah J. Decker as general guardian for the infant. These amounts, with the expenses of the proceedings and the fees of the county treasurer, comprised the amount of the fund.

The statute provides that when a testator shall have a child born after the making of a will, and shall die leaving the child unprovided for by any settlement, and not mentioned in the will, every such child shall succeed to the same portion he would have taken in a-case of intestacy of the parent. (3 R. S. [Birdseye’s ed.] p. 3344, § 17.) In all respects, except the failure to provide for the child,, the will is valid. (Smith v. Robertson, 89 N. Y. 555.)

"We are inclined to agree with the conclusion of the County Court,, that by the terms of the will Mrs. Decker is entitled to a life estate in the surplus moneys, and that the husband is entitled to- the use of the fund as tenant by the curtesy, subject to the life estate of Mrs. Decker. But we are not aware of any rule of law or of court by which Mrs. Decker can be compelled to take a gros’s sum in lieu of the use of the fund during her life. The Code of Civil Procedure permits a widow in partition actions to elect to take a gross sum in satisfaction of her dower right, but such election is optional witli her. It is provided by rule 71 oí the General Rules of Practice -that where a tenant for life, by curtesy, or in dower, is entitled to the annual interest or income of a sum paid into court or invested in permanent securities, he may consent to accept a gross sum in lieu of such annual interest or income for life.' The interest shall be estimated according to the then value of the annuity, according to the tables. The tenant is not entitled as of right to make such election under this rule. (In the Matter, etc., of John Zahrt, 94 N. Y. 605.)

The testatrix, by her will, contemplated that the fund should be kept intact, and the mother be entitled to its use during her life. By the judgment of the County Court she is deprived of this. The fund is to be at once divided, and the creditors of the husband are permitted to appropriate to the payment of their judgments the present value of the husband’s interest as tenant by the ■curtesy. The fund, we think, must be kept together, if Mrs. Decker so desires, during her lifetime; in case the husband survives the mother his right to the use of the fund will then attach, and his ■creditors may then be entitled to apply the income therefrom, as it .shall accrue, to the liquidation of their claims ; the principal sum, however, to remain undisturbed, to be delivered to the child on the ■death of its father, if he shall survive Mrs. Decker; or, if not, upon the death of Mrs. Decker.

The judgment of the County Court should be modified in the manner indicated, and, as so modified, affirmed.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Order of the County Court of Monroe county modified as indi- ■ cated in the opinion, and, as so modified, affirmed, with ten dollars ■costs and disbursements to appellant, to be paid by the respondent. ■Order to be settled by Lewis, J.


author: Dwight, P. J.:

text:
    Mary R. Sessions, Appellant, v. New York, Lake Erie and Western Railroad Company, Respondent.

      Money lost by a passenger in a sleeping car — when it may be recovered— burden of proof — duty of a corporation to maintain watch over such a ca/r.

    Where money is lost by a passenger upon a sleeping car, in the absence of proof that such corporation was liable as a common carrier, the corporation operating such car can be charged with liability only on the ground of negligence, in failing to maintain a continued watchfulness over the interior of its sleeping cars while the passengers therein are sleeping.
    In an action brought by such passenger against such corporation to recover the amount of his loss, the burden of proof is upon the plaintiff to establish negligence on the part of the defendant.
    Appeal by the plaintiff, Mary R. Sessions, from a judgment of the County Court of Chautauqua county in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 30th day of December, 1893, upon the decision of the court reversing the judgment of a justice of the peace of the city of Jamestown, Chautauqua county.

      W. L. Sessions, for the appellant.

      G. Jd. LoeTtwood, for the respondent.
   Dwight, P. J.:

The action was to recover the sum of thirty dollars and seventy-five cents, alleged to have been lost by the plaintiff, through the negligence of the defendant’s servants, while she was a passenger on board a sleeping car of the defendant’s road. The action was tried by the justice without a jury, and judgment was rendered in favor of the plaintiff. On appeal to the County Court that judgment was reversed, and from the judgment of the County Court this appeal was taken.

The money was lost from the personal custody of the plaintiff. It was in a portmonie which was inclosed, with a jewel case, in a small velvet bag, which she carried in her hand satchel, and the latter she held in her lap or in her hand from the time of taking her seat in the sleeping car until she retired at night. She and her husband occupied a section, sleeping in the lower berth, and when they retired the hand satchel was placed between them, and Mr. Sessions testifies that it was between his upper arm and his body When they woke in the morning the bag was in the same place, only, as the plaintiff testifies, a little lower down in the bed. On rising the plaintiff took her bag and went to the ladies’ toilet room at one end of the car and Mr. Sessions to the gentlemen’s toilet room at the other end. .The latter returned first from the toilet and took a seat in the drawing room, having first asked the porter to make up their section in order that his wife might have a place to sit when she came from her toilet. The evidence shows quite conclusively that the plaintiff did not discover her loss until after she had gone to the toilet room, taking her bag with her. Whether she discovered the loss while there or after, her return to her seat her testimony does not disclose. Her only statement on the. subject of the discovery is: “ After I got up the next morning I opened my handbag and my velvet bag; the jewel’ case was there, but the portmonie was gone with the money in it.” Mr. Sessions testifies : Soon after plaintiff arose she opened said handbag and informed witness that her money was gone; witness then inquired for the conductor of the sleeping car of the porter,” and, upon his coming, informed him of the loss.” The whole narrative shows that this must have been after the plaintiff returned from her toilet; and the porter testifies that a few minutes after they returned to their seats he saw Mr. Sessions looking around, and went to him and he said : My wife has lost a purse; ” that he asked the lady when she had it, and she said she had it in the wash room; that he told her that she had better go and look for it there; that she went, but soon came back and said it was not there, and that it was after this that Mr. Sessions asked to see the conductor of the car, as he wished to report the loss to him. All this testimony of the porter is without contradiction, and it is entirely consistent Avith the narrative of the the plaintiff and her husband, so far as that narrative goes.

These facts seem trivial, but it is upon them that the question of the defendant’s liability depends. It is not contended that the defendant was liable for this money as a common carrier, or as a bailee of any sort; it can be charged Avith liability only on the ground of negligence, and the only negligence complained of is the failure to maintain a continued watchfulness over the interior of the car while the plaintiff and her husband were sleeping. That is the duty enjoined by the court in the cases — • cited by counsel for the plaintiff' — -of Carpenter v. N. Y., N. H. & H. R. R. Co. (124 N. Y. 53) and of Pullman Car Co. v. Gardner (3 Pennypacker, 18), and it is the only duty the neglect of which is complained of in this case. To quote from the single point made by counsel in his brief of argument on this appeal: The negligence complained of is that none of the defendant’s employees were continually on guard in the car in a position to observe the movements of all persons in the passageway between the sections; ” quoting from the case in Pennypacker (supra) the statement, which is also quoted by the Court of Appeals in the case of Carpenter (supra), as follows : “ A corporation engaged in running sleeping coaches, with sections separated from the aisle only by curtains, is bound to have an employee charged with the duty of carefully and continually watching the interior of the car while berths are occupied by sleepers.”

It was plainly essential to the plaintiff’s case to show that her money was taken from the berth where she and her husband were sleeping. Upon no other theory could the loss have been attributed in any degree to the negligence complained of. But this theory is negatived by the testimony of the porter, above recited, and the testimony of the plaintiff and her husband entirely fails to .establish it. As we have pointed out, that testimony shows that the loss was not discovered until after the plaintiff had gone to the toilet room, and it fails to show that it was discovered until after she had returned to her seat in the body of the ear. In either case there is a failure to prove the fact essential to a recovery, viz., that the pocket book was stolen from the berth while its occupants were asleep — with a decided balance of the probabilities against that theory —• while the burden was on the plaintiff to establish it.

For the failure of proof here pointed out we think the judgment of the Justice’s Court was properly reversed, and the judgment of the County Court must be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Judgment of the County Court of Chautauqua county appealed from affirmed, with costs.


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    The People of the State of New York ex rel. John Lardner and Another, Appellants, v. Samuel A. Carson, Respondent.

      Code Civ. Proe. '§§ 1948 and 766 — successive incumbents of the office of Attorney-General— need not be individually substituted as attorney in an action — practice of the Attorney-General’s office an exception to the rules of practice — order, when not ex parte — order striking a cause from the calendar — when reviewed on appeal.

    The duty prescribed by section 1948 of the Code of Civil Procedure, in relation to actions by The People of the State of New York, is an official one pertaining to the office of Attorney-General, and not to the person who at any time happens to be the incumbent of the office; it is a duty which goes with the office and devolves in turn upon each incumbent, and it is contrary to the theory of the action and to the spirit of such statute that each successive incumbent of the office of Attorney-General should be required to be individually substituted for his predecessor by au order of the court, before he can proceed in behalf of the People with the prosecution of those actions which are pending when he succeeds to such office.
    When an objection is made to the conduct of an action brought by the Attorney-General of the State in behalf of the People, founded only upon a rule of practice of the court, the practice of the Attorney-General’s office may well be considered as establishing an exception to such rule where the uniform practice of that office is contrary to such rule of the court.
    ' An order is not granted ex parte where notice of the application therefor was given on the spot, and an opportunity to be heard given, of which the parties opposing the granting thereof availed themselves, although no notice, for any prescribed period of time, of such application was given in writing.
    An order striking a cause from the calendar of a Circuit Term of the Supreme Court affects a substantial right of the party opposing the granting thereof, and the fact that such case cannot be restored to its place on the calendar of the court, from which it was stricken, for the reason that the court has adjourned without day, does not prevent a review of such order upon appeal.
    The provisions of section 766 of the Code of Civil Procedure relate to the continuance of an action by the substitution of a party plaintiff and not to the substitution of an attorney.
    Appeal by the plaintiff, The People of tbe State of New York ex rel. John Lardner and another, from an order of the Supreme Court, made at the Niagara Circuit and entered in the office of the clerk of the county of Niagara on the 20th day of February, 1894, granting the defendant’s motion to strike the ease from the calendar of the Niagara Circuit.

      W. H. Ransom, for the appellant.

      Charles IRoltey, for .the respondent.
   Dwight, P. J.:

This action, which was in the nature of quo warranto for the office of superintendent of the poor of Niagara county, was begun in 1893 by Mr. Rosendale, then Attorney-General of the State, as attorney for the plaintiffs, and, being at issue, was noticed for trial in January, 1894, by Mr. Hancock, who in the meantime had succeeded Mr. Rosendale in the office of Attorney-General. The new Attorney-General also procured the cause to be put on the calendar of the Niagara Circuit, for which it was noticed, and was in attendance by counsel to try the same, when, on motion of the defendant, and after hearing counsel for the plaintiffs in opposition thereto, the court struck the cause from the calendar on the ground, as* stated in the order, that the Attorney-General who noticed the case for trial was not the same person who brought the action, and had not been substituted for him as attorney for the plaintiffs.

The order was manifestly wrong. The action was brought by the Attorney-General of the State in behalf of the People and another as plaintiffs, in performance of a statutory duty. Section 1948 of the Code of Civil Procedure provides that “ the Attorney-General may maintain an action upon his own information or upon the complaint of a private person * * *: 1. Against a person who usurps, intrudes into or unlawfully holds or exercises within the State * * * a public office, civil or military.” The section occurs in the 1st title of chapter 16 of the Code, and the title is of Actions in behalf of the people.” .

The duty here prescribed is an official one and pertains to the ■office of Attorney-General and not to the person who at any one time chances to be the incumbent of the office; a duty which goes with the .office and devolves in turn upon each incumbent as he succeeds thereto. The officer of the State who noticed this cause for trial was to all intents and purposes the same officer who originally brought the action, viz., the Attorney-General of the State, upon whom is charged the duty of bringing and maintaining this action. It is contrary to the theory of the action and to the spirit of the statute that each successive incumbent of the office of Attorney-General should require to be individually substituted for his predecessor by an order of the court before he can proceed with the prosecution of those actions in behalf of the People which are pending when he succeeds to the office.

There is also evidence in the record before us that, as we might well suppose, the proposition to substitute is contrary to the uniform practice of the Attorney-General’s office as far bach as the memory goes of any person connected with that department of the government of the State, and the suggestion of counsel for the plaintiffs is not impertinent, to the effect that, in the matter of an objection founded,«as this is, only upon a rule of practice of the court, the practice of the Attorney-General’s office might well be considered 'as establishing an exception to the rule, if that were necessary.

The ob j ections to this appeal are without force. The order appealed from was not granted exporte, but was made upon notice — not notice in writing nor of any prescribed period of time, but notice on the spot — and an opportunity to be,heard, of which the plaintiffs availed themselves, and without which the court would, certainly, not have made the order. The order affects a substantial right of the plaintiffs, namely, their right to have their cause tried, according to their notice of trial, when reached on the calendar. The fact that the same cannot be restored to its place on the calendar of a court which has adjourned without day is not conclusive against a review of the order. The plaintiffs have a right to have the practice settled, with a view to future attempts to bring their cause to trial, and the precedent of the decision at the February Circuit might stand in their way if not reversed.

Section Y66 of the Code of Civil Procedure has no application to this case. The provision there is for the continuance of the action by the substitution of a party plaintiff and not for the substitution of an attorney.

The order appealed from should be reversed, with costs.

Lewis, Haight and Bradley, JJ., concurred.

. Order appealed from reversed, with ten dollars costs and disbursements.


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    Obed M. Rice, Respondent, v. Jacob K. Post, Appellant.

      Employment of a third pes-son by an agent — when the principal is not liable for the value of his services.

    Where an agent, without authority from his principal, employs another to render services which were due from himself to his principal, he only obligates himself to compensate the person-so employed, and his principal is not liable therefor, even though the principal may have had the benefit of the services of such person.
    Appeal by the defendant, Jacob K. Post, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 12th day of February, 1894, upon the verdict of a jury, and also from an order entered in sdid clerk’s office on the 9th day of February, 1894, denying the defendant’s motion for a new trial.

      M. II. Briggs, for the appellant.

      Herbert Stull, for the respondent.
   Dwight, P. J.:

The action was to recover a balance of commissions claimed to be due to the plaintiff on the sale of a block of buildings in the city of Rochester belonging to the defendant. One Bruff had been for many years the agent for the defendant to manage and care for the property and to collect the rents. He was also, at the time to which the evidence relates, authorized to sell the property. The plaintiff had been for some time a tenant of the block; he always dealt with Bruff and supposed that he was the owner of the property. He owed for rent of his apartments about $260 when Bruff engaged him to find a purchaser for the property, and agreed to pay him double commissions if he succeeded in finding a purchaser at the price of $14,000. He did find a purchaser, whom he brought into communication with Bruff, and a sale or exchange of the property was effected at the nominal price of $14,000. Bruff allowed the plaintiff credit for the rent due from him, which the former asserted was as much as he owed him for commissions, while the latter claimed a balance of $260 still his due, for which he brings this action against the defendant.

There is no evidence that Bruff was in any manner authorized by the defendant to employ a sub-agent or broker to make a sale of the property, and, of course, none that he was authorized to contract for the defendant to pay double commissions for such service. There is no evidence that the defendant knew that the plaintiff was employed to, or did, render any service in connection with the sale; and the only evidence that he knew that the plaintiff was credited with the rent due from him, on his claim for commissions, was the admission, by the defendant’s answer, that he had paid the plaintiff the sum of $264.50. This admission affords no evidence of a ratification by the defendant of the contract made by Bruff, because there is no evidence that he ever know, before this action was commenced, that any such contract had been made.

The contract made did not purport to be the defendant’s contract, nor to be made for him, but was made by Bruff, and was understood by the plaintiff to be Bruff’s contract in his own behalf, and to bind no one but himself.

The fault of the plaintiff’s action is that it makes choice of the wrong man for defendant. It is true that the defendant has had the benefit of the plaintiff’s services, but all that benefit he was entitled to from the services of the agent whom he had employed; if the latter has employed another to render the services which were due from him, he only obligates himself to compensate the person so employed. (Carroll v. Tucker, 50 N. Y. St. Repr. 611, and the cases cited.)

There were several exceptions to the charge of the court and refusals, which raise substantially the same questions as those presented by the motion for a nonsuit. Eor the error in denying that motion, and upon the exceptions referred to, the judgment and order appealed from must be reversed, and a new trial granted.

Lewis, Haight and Bradley, JL, concurred.

Judgment and order of the Monroe County Court appealed from reversed and new trial granted, costs to abide the event.


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    William Van Nostrand, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Damages caused by spm’Jcs from a locomotive — burden of proof.

    In an action brought to recover damages for the burning of a sawmill, alleged to have been caused by sparks from a locomotive, there are but two grounds on which a defendant, which has used upon its locomotives the best known appliances for arresting sparks, can be held liable, viz., negligence in permitting such appliances for arresting sparks to be out of repair, and negligence in the manner of using the same, the burden of proof in respect to which is upon the plaintiff.
    Appeal by tbe defendant, The New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 1st day of November, 1892, upon the verdict of a jury rendered after a trial at the Allegany Circuit, and also from an order of the Supreme Court, made at the Allegany Circuit on the 20th day of October, 1892, denying the defendant’s motion for a new trial made upon the minutes.

      J. S. Stevens, for the appellant.

      G-. 8. Van Gorder, for the respondent.
   Dwight, P. J.:

The action was to recover damages for the burning of a sawmill and appurtenant buildings of the plaintiff, caused, as alleged, by fire communicated by sparks from a locomotive engine of the defendant. There was but one engine in question, which was perfectly well identified and to which all the testimony related. It was an extension front engine and — as was conceded by the plaintiff and charged by the court — its appliances for arresting sparks were, in device and original construction, the best known to be in use. There were, therefore, but two possible grounds upon which the defendant could be charged with liability for the loss complained of, viz.: (1) Negligence in permitting the spark arrester to be out of repair; (2) negligence in the' manner of its use.

In regard to the latter of these propositions, we think it may properly be said that there was no footing for it to stand upon in this case. It is true, no doubt, and the evidence of one of the defendant’s witnesses shows, that the amount of fire which is drawn through the spark arrester may be increased by a greater head, of steam and a more violent exhaust, but. there is no evidence at all that such use was- made of the engine when it was passing the plaintiff’s mill on the evening of the fire, and such evidence as there is on the subject is to the contrary. It was shown that the track of the railroad was on a down grade to the east from a point a quarter of a mile west of the mill all the way to the neighboring station, which was a mile east; and the engineer testifies that as he passed the top of the grade he shut off his steam and ran by momentum past the mill and to the station, where the train was to stop. There certainly was no occasion for letting on steam, and it was impossible for the engine to labor going down that grade. The evidence also shows that in the extension front engine the wire netting of the spark arrester is fixed in position, not hinged ncr in any way movable, so that it cannot be opened at the will of the engineer for greater draft, nor for any other purpose, except by removing its fastenings or breaking or tearing it away.

The case of the plaintiff must, therefore, it seems, have rested wholly on the proposition that the spark arrester of this engine was negligently out of repair, and the affirmative of that proposition was with the plaintiff. As usual, the attempt was made to establish the fact by evidence of escaping sparks, and the witnesses who testified on that subject were a mother and daughter -who lived m a house 200 feet north of the railroad and half a mile west of the mill. The date was the first of November and the hour about seven o’clock in'the evening. The two women were in the kitchen engaged in washing their dishes after supper; the night was dark, and they caught only a momentary glimpse of the rapidly passing train; the wind was from the east, and they testify that they saw a stream of sparks from the smokestack of the engine which, as nearly as they were able to describe them, seemed to be from the size of a pea to that of a hickory nut. The train had still half a mile to run before it reached the mill, and the latter half of that distance was the down grade before mentioned. This is all the evidence in the case which tends to show that the engine in question at any-time emitted sparks larger than those which would pass through the meshes of a netting of the most approved construction and in perfect repair. There is no evidence that sparks were seen coming from the smokestack within half of a mile of the buildings which were burned, nor that any sparks were driven in the direction of those buildings, nor that cinders from the engine were found anywhere in the vicinity.

On the other hand, there was the uncontradicted testimony, apparently credible, of several persons holding positions of trust and responsibility in the employment of .the defendant, to the effect that both shortly before and shortly after the casualty in question the spark arrester of this engine was found, upon actual inspection, to be in perfect repair ■ — ■ its wire netting permanently fixed in place, without orifice or opening larger than the original meshes, which were conceded to be of the proper size. This evidence was direct and positive, and, unless willfully false, was conclusive against the theory of the defendant’s negligence. The evidence to the contrary was purely inferential, and related to nothing more definite than the apparent size to the eye of a momentary observer a dozen rods away of some glowing sparks flying in the darkness.

This is the case pro and con upon the question of the defendant’s negligence, in respect to the repair of the spark arrester of the engine of the defendant which passed the plaintiff’s buildings a little time before they were discovered to be on fire. We are of opinion that it fails to present a preponderance of evidence in support of the allegation of the plaintiff in this respect. The fact that the fire was discovered shortly after the passing of the plaintiff’s buildings by the engine in question, would bear only remotely upon the question of the defendant’s negligence; for, even if the fact was established that the fire was set by sparks from the engine, it must be further shown that those sparks were such as could not pass through the meslies of spark arrester of approved construction and in perfect repair. In Searles v. Manhattan R. R. Co. (101 N. Y. 661) the court, by Earl, J., remarks that the mere proof of the escape of cinders was not sufficient” to show that the spark arrester was defective, “ as the evidence showed that their escape could not be avoided and was inevitable.”

In this case the court was requested to instruct the jury, in substance, that even if the fire was caused by sparks which passed through the netting, when in good repair, then it was an accident for which the defendant was not liable. . To which the court responded: “I think I will charge that.” The defendant was unquestionably entitled to the instruction, and it was, no doubt, the intention of the court to give the defendant the benefit of such instruction, although from what subsequently occurred there is some reason to suppose that the court was not fully understood to that éffect; because, after the jury had been out all night, they came in for further instructions and. propounded to the court the following question : In case we find that the mill was burned by sparks from the railroad company’s engine, and further find that the spark arrester was in good and sufficient working order, can we give a judgment ? ” It is plain that this question was fully answered by the instruction above asked for by the defendant, and which the court evidently intended to give to the jury; also, that a categorical answer to the question, as now propounded, required the court to say that, in the case supposed, they should give a verdict for the defendant. ■ The question was not answered categorically, but by a renewed discussion, at some length, of the general principles governing the defendant’s liability. There was no further request by counsel for the defendant nor any exception which points to error in the response of the court, but the incident seems to us to emphasize what has already been said of the lack of proof in support of the particular allegation of negligence on the part of the defendant in respect to the repair of the spark arrester. That, as we have seen, was the only respect in which negligence could be charged, and it seems probable that that was the question upon which the jury hesitated, and that if the instruction asked for and intended to be given had been clearly understood the jury would have discovered the lack of a clear preponderance of evidence in support of the plaintiff’s allegations in that respect.

We think that the verdict, as finally rendered, was so far against the weight of evidence, upon the question discussed, as would have justified the court at the Circuit in granting the defendant’s motion for a new trial. (Koare v. The Troy S. & I. Co., 139 N. Y. 369.)

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

Lewis, Haight and Bradley, JJ., concurred.

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


author: Dwight, P. J.

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    Hymon Bloom, Suing in His own Behalf, etc., and Others, Respondents, v. The National United Benefit Savings and Loan Company and Others, Appellants.

      Motion for leave to file exceptions nunc pro tunc — when too late — to excuse laches, merits must he shown.

    An action was brought in behalf of the plaintiff therein named and other shareholders of a corporation to recover from the directors thereof damages for the loss of assets of such company occasioned by the negligence and misfeasance of such directors. The principal issues were tried and determined in favor of the plaintiffs, and an interlocutory judgment was entered directing that an account be stated, and in pursuance thereof the matter was referred to a referee who made and filed his report, and notice of the filing thereof was given to the defendants. A motion for the confirmation of the report and for final judgment was thereafter duly noticed and made. The defendants were represented on the hearing of such motion, and opposed the confirmation of the report, although they had filed no exceptions thereto, and made, at that time, no request for leave to file exceptions nor for time, before the confirmation of the report, in which to apply for such leave. The report was confirmed and final judgment was entered thereon. The defendants then moved for leave to file exceptions nunc pro tunc on the ground of inadvertence.

      Meld, that the motion was made too late and was properly denied.
    "Where a motion is made to excuse laches, the moving papers must show merits in the application.
    Appeal by the defendauts, The National United Benefit Savings and Loan Company and others, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 28th day of February, 1894, denying the defendants’ motion for leave to file exceptions to the report of a referee nunc pro inmc.

      J. H. Hopkins, for the appellants.

      J. B. M. Stevens, for the respondents.
   Dwight, P. J.

There seem to have been several good reasons for denying the defendants’ motion in this case. The action was in behalf of the plaintiff named, and all others of the shareholders of the defendant company who might elect to come in as parties, to recover of the other defendants — certain directors of the company — for loss of assets through the negligence and misfeasance of such defendants. The principal issues joined in the action had been tried and determined in favor of the plaintiffs, and an interlocutory judgment had been entered which directed, among other things, that an account be stated of debts and liabilities of the company for which the shareholders were or might be personally liable. A reference was accordingly had to take and state such account; the referee made his report, which was duly filed, and notice of the filing was given to the defendants. A motion was duly noticed and made for the confirmation of the report and for final judgment. The defendants were represented on the hearing of the motion, and opposed the confirmation of the report, although they had filed no exceptions thereto, and they made, at that time, no request for leave to file exceptions nor for time — before the confirmation of the report — in which to apply for such leave. The report was accordingly confirmed and final judgment was directed and entered thereon, and it was only after the entry of such final judgment that notice was given óf a motion on behalf of the defendants for leave to file exceptions nunc pro tunc, on the ground of inadvertence.

The motion was clearly too late. The attorney and the counsel for the defendants must have discovered, on the hearing of the motion to confirm, if they did not know it before, that they had no exceptions, filed, to the report of the referee; and then was the time, if they desired to have exceptions, to ask for leave to file them then and there, or for a postponement of the confirmation of the report pending their application for such leave. By this means — if the leave should be granted — the exceptions would be before the court on the motion to confirm and for judgment. To interject exceptions into the record nunc .pro tunc would be to make a case on appeal which was not the case upon which the order and judgment appealed from were made and entered.

There is another ground upon which we think the court might properly have denied the motion. The motion was for a favor — to excuse laches; the moving papers should have shown merits in the application, viz., that there was some reasonable ground for the exceptions which leave was asked to file; so far as appears by the moving affidavit -there was no ground whatever for any exception, and the motion was a purely dilatory proceeding.

The order appealed from should be affirmed.

Lewis, Haight and Bradley, JJ\, concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.