text:
    In the Matter of the Probate of the Last Will and Testament of Myra Clark Gaines, Deceased. Julietta Perkins and Another, Appellants, v. William H. Wilder and Others, Respondents.

      The Oode of Oivil Procedure has no e¡ctra-territorial force —principal and ancillary administration of an estate — personal assets, in a sister State, of a deceased resident of New York — a stay in New York will not affect proceedings in a sister State.

    The provisions of the Oode of Oivil Procedure relating to a stay of proceedings on an appeal have no extra-territorial force, and can affect only proceedings in the State of New York.
    The administrations in different States of a single estate are, as a matter of jurisdiction, entirely independent, and it is a mere matter of comity that treats the administration of the domicile as principal and the others as ancillary.
    The personal assets of a deceased resident of the State of New York, if in a sister State, are distributable under the laws of that State, and are solely under the control of its courts, and it is a question of judicial discretion resting with such courts as to whether such assets shall ever be transmitted to the State of New York.
    Where the courts of a sister State are the dominant arbiters of the distribution of a fund of a decedent under their control, the stay given by the statute of the State of New York upon an appeal from a decree admitting to probate the alleged will of such decedent does not deprive parties interested in such fund of the right to appeal to the tribunals of such sister State for a determination of their rights to such fund.
    Motion by Julietta Perkins, the proponent of an alleged holographic will, and by Marie P. Evans, both being opponents of an alleged nuncupative will, made pursuant to and on the return of an order to show cause made at the General Term of the second judicial department, dated May 18, 1894.
    The order to show cause was as follows:
    “On reading the annexed affidavit, and it appearing therefrom that'the respondents, William IT. Wilder, William W. Whitney, Zulime Summers, William W. Christmas, Rhoda E. Kennedy and James M. Christmas, by entering into a collusive agreement as alleged in the city of New Orleans, whereby, in violation of the stay of execution of the surrogate’s decree, by appellants’ appeal to this court, and in violation of the laws of this State regulating appeals, they caused the Supreme Court of Louisiana to modify its decree of November 20, 1893, authorizing and directing the execution of the said surrogate’s decree as a final judgment, and thé distribution of the estate of the decedent' in the city of New Orleans, according to the provisions of the said nuncupative will, and that as it appears .from said affidavit, it was done for the purpose of circumventing ;and defeating any judgment or decree of this court, reversing the decree of the said surrogate and for the further purpose of defeating, impairing, impeding or prejudicing the rights of the appellants in case of their recovery thereafter and in case of the reversal of said surrogate’s decree; and it further appearing that by reason of the said modified decree of the said Supreme Court of Louisiana the said legatees have been paid their legacies, and that the residuum, thereof has been distributed, or is about to be distributed, to the said respondents, William W. Whitney, Zulime Summers, William W. Christmas, Rhoda B. Kennedy and James M. Christmas; it is therefore,
    “ Ordered, that William H. Wilder, William W. Whitney, Zulime Summers, William W. Christmas, Rhoda B. Kennedy and James M. Christmas, respondents on the said appeal, show cause before a General Term of this court, appointed to be held at the Court House of Kings county in the city of Brooklyn on the third Monday of June, 1894, at 10 o’clock in the forenoon of that day, or as soon thereafter as counsel can be heard:
    “ "Why they have disregarded the stay secured to the appellants by their appeal, prohibiting the enforcement of the said surrogate’s decree, by causing and collusively agreeing that the said decree during the pendency of this appeal might be executed and the provisions of the said nuncupative will carried into effect in violation of the appellate jurisdiction of this court, and the laws of the State regulating appeals.
    “ Why the said respondents, while parties in this court to this appeal, opposing the reversal of the said surrogate’s decree, with others, combined and colluded to interfere with the jurisdiction of this court, and to violate the law of this State, enacted as safeguards to the rights of appellants, with the alleged purpose of rendering ineffectual the judgment of this court when rendered, and defeating the ultimate administration of the estate of the deceased, by the courts of her domicile, and with the view of defeating, impairing, impeding and prejudicing the rights and interests of the appellants in their effort to probate their will.
    “ Why respondents should not procure the revocation of the said modified decree of the Supreme Court of Louisiana, induced as it appears through their petition' conjoined with others, and by their connivance, agreement and consent, fraudulently suppressing the facts relating to the status of the surrogate’s decree in this State, and withholding the same from the said Supreme Court, knowing that the said decree was pending and undetermined in this court, and absolutely stayed, and the payment of the legacies thereunder and the distribution of the decedent’s estate forbidden by law.
    “Why respondents should not pay into this court the moneys they have received as legacies from the estate of the deceased, or as their shares in the distribution thereof by reason of the enforcement of the said surrogate’s decree, under and by virtue of the provisions of the said nuncupative will or otherwise have received, since the perfecting of the appellants’ appeal, to remain and abide until the termination thereof, and until the further order of this court.
    “ Why, in case the said estate is not all paid out and distributed, the said respondénts should not be stayed from the further participation in the payment or receipt of the said legacies mentioned in the said will, or the enforcement and carrying out of the said modified decree, or the further distribution of the said estate.
    “Why, in case the respondents fail to excuse themselves and to comply with the order of this court, they should not be adjudged to be in contempt therefor, and, until purged therefrom, denied a further hearing on this appeal.
    “ Why the respondents should not make full and true answers, under oath, to all of the allegations of the said affidavit on the day fixed for the hearing of this motion, and to disclose fully the amount of money they and each of them have received from the said estate. _
    “ Service of a copy of this order and annexed affidavit may be made on Wm. T. Gilbert, Esq., attorney for respondents William H. Wilder, William W. Whitney and Zulime Summers, and William T. Houston, Esq., attorney for respondents William W. Christmas, Rhoda B. Kennedy and James M. Christinas, and a personal service of such copy upon each of said respondents without the State shall be deemed notice of this motion.”
    The appeal in this -case was by Julietta Perkins, the projionent of an alleged holographic will, together with Marie P. Evans, both as opponents of an alleged nuncupative will, from a decree of the Surrogate’s Court of Kings county, entered in the office of the Kings County Surrogate’s Court on the 25th day of June, 1891, admitting to probate such nuncupative will as the last will and testament of Myra Clark Gaines, deceased, and rejecting such holographic will.

      John A. Grow, W. W. Goodrich, Bélma A. Lockwood and Isaac Sha/rp, for the appellants.

      W. T. Houston, -for William W. Christmas and others, respondents.

      W. T. Gilbert, for Wm. H. Wilder and others, respondents.
   Cullen, J.:

This is a motion made by the appellants at General Term to punish certain of the respondents for contempt. Mrs. Gaines died a citizen of New York, domiciled in the county of Kings. Proceedings were instituted in that county for the probate of her will, and from a decree of the surrogate admitting the will to probate an appeal was taken to this court which is still pending before us. Substantially, the whole estate consisted of personalty in New Orleans, in the State of Louisiana. There had been litigation between the parties in that State which it is unnecessary, to recite farther than to say that an alleged holographic will was there offered by appellants and rejected and an administrator appointed. After the appeal had been taken from the decree of the surrogate of Kings county, some of the respondents, whom it is now sought to punish for contempt, applied to the courts of Louisiana for the distribution of the fund held there in accordance with the terms of the will proved here, which application was granted. The others received their shares under the distribution, but did not make application for the distribution.

The affidavits presented on this motion and the opinion of the Supreme Court of Louisiana clearly show that that court knew the fact that an appeal was pending from the surrogate’s decree and also the effect of such an appeal in staying proceedings. But even if it were shown that the Louisiana court had been imposed upon, we are at a loss to see how that imposition could be a contempt of this court. This application must rest solely on the effect of the statutoiy stay of proceedings given by section 2582 of the Code of Civil Procedure.

"We think that the provisions of the Code can have no extra-territorial force and can affect only proceedings in this State. It is true that by control of the person of a party a court of this State may, by injunction, restrain his action in other jurisdictions, but this is not such a case. The' assets distributed were in the State of Louisiana, and were, therefore, solely under the control of the courts of that State. The administrations in different States of a single estate are, as a matter of jurisdiction, entirely independent, and it is a mere matter of comity that treats the administration of the domicile as principal and the others as ancillary. (Williams on Executors, 363; Story on Conflict of Laws, §§ 513, 518; Matter of Hughes, 95 N. Y. 55.)

It was a question of judicial discretion whether the courts of Louisiana would ever transmit the fund to this State. (Matter of Hughes, supra.)

Tlie tribunals of Louisiana being, therefore, tbe dominant arbiters of tlie distribution of a fund under their control, tbe stay given by the statute of this State did not deprive the respondents of the right to appeal to such tribunals for a determination of their rights to that fund.

The motion should be denied, with ten dollars costs and disbursements.

Reown, P. L, and Dykman, J., concurred.

Motion denied, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Cullen, J.:

license: Public Domain

text:
    Grand Rapids Veneer Works, Appellant, v. George E. Forsythe and Another, Respondents.

      Parol evidence — at van'ianae with the terms of a written instrument — recovery for goods sold and delivered — proof that the order and contract were based on samples shown.

    Parol evidence is not, as a rule, admissible to contradict a written contract nor is it admissible where the writing appears to constitute a complete and perfect agreement, but this rule does not apply where the original contract is verbal and entire, and a part only is reduced to writing, nor does it apply to collateral undertakings.
    It was shown upon the trial of an action, brought to recover the value of goods sold and delivered, that the negotiations had between the parties were oral, by the presentation of samples, in pursuance of which a written order was given in the following terms:
    "Brooklyn, 2Y Y., June^th, 1891.
    “ Grand Rapids Yeneer Works, Grand Rapids, Mich.:
    “ Order Book No. 1437.
    “Dear Sirs. — Please ship us at once 1 carload 1-30" Birch Squares composed of 1300 squares 16x16 and balance of equal parts of 14x14 & 15x15. To be dry, flat and cut smooth without fractures, and at least i d. white faces. Price §3.75 M. 4mos. note.
    “ Yours truly,
    “FORSYTHE & 00.
    “We pay i freight.
    "F. & Co.
    “You may send samples of your 1-30 & 1-15" Birch sheets, say 36" grain, &iilso of Shaved Quar. Oak 1-30”.”

      Held, that as the order contained no covenants on the part of the vendor, and was not executed by it or its agent, it was not in form an agreement, and did not constitute a contract except by acceptance by the vendor;
    That as the contract of sale was executory, the vendee having no knowledge of tlie character of the goods save by the samples, it was permissible to show that the order and contract were based on the samples shown and that the sale was by sample.
    Appeal by tbe plaintiff, tbe Grand Rapids Veneer Works, from a judgment of the Supreme Court in favor of tbe defendants, entered in tbe office of the clerk of the county of Kings on tbe 19th day of December, 1893, upon tbe verdict of a jury rendered after a trial at tbe Kings County Circuit, and also from an order made at tbe Kings County Circuit on tbe 14th day of December, 1893, denying tbe defendants’ motion for a new trial made upon tbe minutes.

      Estes, Barnard <& Tiffany, for tbe appellant.

      J. Stewart Boss, for tbe respondents.
   Cullen, J.:

This is an appeal from a judgment for tbe defendants entered upon tbe verdict of a jury and an order denying plaintiff’s motion for a new trial. The action is to recover tbe price of squares of veneer shipped to defendants under an executory, contract of sale. Tbe defendants refused to accept tbe goods on tbe ground that they did not comply with tbe contract, and counterclaimed for an amount of freight paid by them.

We are strenuously urged to set aside tbe verdict on the ground that it is against tbe weight of evidence. Our examination of the' evidence leads us to no such conclusion. There was a fair question of fact whether the goods complied with tbe order or not, and tbe question was fairly submitted to tbe jury under a charge to which no exception was taken. The verdict must, therefore, stand unless there was legal error in tbe conduct of the trial. In this respect there is but one question that needs discussion.

Tbe contract between tbe parties, so far as it was in writing, consisted of an order given by defendants to the plaintiff’s agent Tbeis and a series of letters and' telegrams following. Tbe defendants in their answer alleged that tbe sale was made by samples on tbe representation of tlie agent that tbe goods were of a superior quality and equal to the sample. Thereupon the defendants gave the agent an order in these terms :

“ Brooklyn, N. Y., June ‘¡¡Qth, 1891.
“ Grand Rapids Veneer Works, Grand Rapids, Mich.:
“ Order Book No. 1437.
Dear Sirs. — Please ship us at once 1 carload Birch Squares, composed of 1300 squares 16x16 and balance of equal parts of 14x14 & 15x15. To be dry, flat and cut smooth without fractures, and at least d. white faces. Price, $2.75 M. 4 mos. note.
“ Yours truly,
“FORSYTHE & 00.
“We pay freight. F. & Co.
“You may send samples of your ^ Birch sheets, say 36" grain, & also of Shaved Quar. Oak,

The subsequent correspondence is not material on the question now presented. On the trial the defendants were permitted to prove against plaintiff’s objection and exception the conversation and transaction between Theis and defendants at the time of giving the order. The appellants claim that this ruling was erroneous.

The question of how far parol evidence is admissible to vary a written contract is often very difficult to determine. It may be laid down as a rule that it is^ not admissible to contradict the written contract nor where the writing appears to be a complete and perfect agreement. (Eighmie v. Taylor, 98 N. Y. 288.)

But the rule does not apply where the original contract is verbal and entire and a part only reduced to writing nor to collateral undertakings. (Chapin v. Dobson, 78 N. Y. 75.)

We think that this case falls within the exception to the rule first named. The negotiation was had orally and by the presentation of the sample. In pursuance of it a written order was given. This order was not in form, an agreement. .It contained no covenants on the part of the vendor and was not executed by Theis, and, therefore, could not constitute a contract except on acceptance by the plaintiff. The contract of sale was executory; .the vendee had no knowledge of the character of the goods save by the sample. We think that in such a case under the authorities cited it was permissible to show that the order and contract. were based on samples shown and that the sale was a sale by sample.

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

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

Judgment and order affirmed, with costs.


text:
    George T. Willson and Another, Appellants, v. Sarah E. Underhill, Respondent.

      Recovery for goods sold and delivered — evidence insufficient to establish an agency.

    Upon the trial of an action, "brought to recover the value of goods sold and delivered, it was sought to charge the defendant on the ground that her husband acted as her agent in purchasing the goods in question, which it was alleged were purchased for her use and benefit.
    'The only evidence given to establish the fact that the wife was the real principal, was proof that she had at all times been the owner of the farm on which her husband carried on his business of farming, for use in which business such goods were purchased, and that after the plaintiffs’ claim accrued she conveyed the farm and the personal property upon it.

      _Held, that the evidence was insufficient to justify the submission to the jury of the question of the husband-’s agency.
    Appeal by the plain tiffs, George T. Willson and another, from judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 9th day of October, 1893, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Dutchess Circuit, and also from an order made at the Orange Special Term and entered in the Dutchess county clerk’s office on the 2d day of July, 1894, denying the plaintiffs’ motion for a new trial, made upon a case and exceptions as settled, upon the exceptions taken upon the trial and because of newly-discovered evidence and surprise.

      A. M. c& G. Card, for the appellants.

      Hachett c& WilUwms, for the respondent.
   Cullen, J.:

This is an appeal from a judgment for the defendant entered upon .a nonsuit at Circuit. There is also an appeal from an order denying plaintiffs’ motion for a new trial on newly-discovered evidence.

The action is to recover for goods sold and delivered. There is no dispute as to the sale or the value of the goods sold. It is conceded _ tjiat the sale was made to the husband of the defendant, and that the credit was extended to him. The only ground upon which the defendant can be held liable is that in fact the husband was the agent of the defendant, and that the goods sold were for her use and benefit. The defendant’s husband carried on the business of farming, and the goods purchased were for use in that business. He received the profits and earnings of the business, and paid its expenses, the plaintiffs dealing with him for nearly twenty years. The only evidence to establish the fact that the wife was the real principal was proof that she had at all times been the owner of the farm, and that after plaintiffs’ claim accrued she conveyed the farm and personal property on it. We think this evidence was insuffi-'* cient to justify the submission to the jury of the question of the husband’s agency, nor did the facts disclosed in the affidavits made on the motion for a new trial supply the defect.

The judgment and order denying motion for a new trial appealed from should he affirmed, with costs.

Dykman, J., concurred; Brown, P. L, not sitting.

Judgment and order affirmed, with costs.


text:
    Emil Schopen, Respondent, v. Homer R. Baldwin, Appellant, Impleaded with Another.

      Physician and patient — under what pleading plaintiff’s malpractice ma/y be proved' by the defendant — a recovery by a physician boo's an action for nonperformance or for malpractice — recouping doomages.

    In an action brought by a physician to recover for professional services alleged to have been rendered, where his claim is presented in a double aspect, both for an agreed price, and also on a quantum meruit, if the answer denies that the plaintiff’s services were of any value, testimony offered on the part of the defendant tending to show malpractice on the part of the plaintiff is admissible in evidence, and the'rule is the same although the defendant may have admitted in his answer that the services of the plaintiff were of some value.
    The contract of a physician is like other contracts; it is usually an entire contract, and a recovery thereon necessarily bars a cross-action for its non-performance.

      A recovery by a physician for services bars an action by the patient for malpractice, but in all suits on entire contracts the defendant may recoup damages for unskillful performance.
    Appeal by tbe defendant, Homer R. Baldwin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 14tb day of June, 1894, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 24th day of May, 1894, denying the defendants’ motion for a new trial made upon the minutes, with notice of an intention to bring up for review on such appeal said order.

      Oarlton P. Pierce, for the appellant.

      J. Hampden Dougherty, for the respondent.
   Cullen, J.:

This is an appeal from a judgment for the plaintiff, entered on the verdict of the jury. The action is brought by a physician to recover for professional services, and the complaint presents the claim in a double aspect, both for an agreed price and also on a qucmtum meruit. ■

The answer admits the services, but denies the special contract as to price, and also denies the value alleged, averring that the services were not worth more than the sum of $1,000, more than which sum had been paid to the plaintiff. The court submitted the claim to the jury in both aspects, and as the jury found a verdict for a sum less than that claimed it may be assumed that the plaintiff recovered on a quantum meruit.

There is but one substantial objection raised on this appeal. On the cross-examination of the plaintiff he was asked whether the bones of the patient’s forearm still protruded. Objection being made to the question, the counsel for defendant stated that he would show that the plaintiff’s treatment of the arm was not proper. The court held that there was no defense of the kind pleaded, and excluded the evidence. The question is, therefore, presented whether, under an answer putting in issue the value of the services of the physician, it is competent to prove unskillful treatment as affecting such value.

It seems at one time in this State to have been doubtful whether malpractice could be proved under the general issue. In Runyan v. Nichols (11 Johns. 547) Judge Van Ness first thought that the evidence was inadmissible under that plea, but, on reflection, doubted the correctness of his opinion, and the decision finally proceeded on the ground that notice should have been given. In Sill v. Rood (15 Johns. 230) the case of Runyan, v. Nichols was distinguished. In Gleason v. Clark (9 Cow. 57) it was held that malpractice, if given in evidence to entirely defeat the plaintiff’s claim, was admissible under the general issue without notice; if merely to reduce the claim, then notice should be given. In Blair v. Bartlett (75 N. Y. 150) Judge Forger states the tenor of these authorities without declaring the rule under the Code, as the case did not involve the question. In Chatfield v. Simonson (92 N. Y. 209) it was held that proof of misconduct of the plaintiff as attorney for the defendant was admissible under a general denial as a bar to the action. The result of these authorities is, that had the defendant denied any value to the plaintiff’s services, the evidence would have been clearly admissible.

But the defendant admitted in his answer that the services were valuable. Does that concession necessarily bar any claim of improper treatment or malpractice ? It is settled law that a recovery by a physician for services bars an action by the patient for malpractice. (Blair v. Bartlett, supra ; Gates v. Preston, 41 N. Y. 113 ; Bellinger v. Craigue, 31 Barb. 534.)

In these cases are to be found statements that recovery to any extent is inconsistent with malpractice. It is said by Judge Forger in Blair v. Bartlett, in speaking of the effect of a recovery for services as establishing their value: But if of value they could not have been useless; and if of use they could not have been harmful; and if not harmful there could not have been mala praxis in the performance of them.” If this is to be considered as asserting that any malpractice is inconsistent with the recovery for any amount it can hardly be a correct exposition of the law. If there can be no malpractice that will merely reduce the recovery, not defeat it, why the old rule of pleading that notice of such malpractice must be given with a plea of the general issues ? The contract of a physician is like other contracts. It is usually' an entire contract, but so are many others. A recovery on the contract necessarily bars a cross-action for its non-perfórmance. This is the case with all entire contracts, except where there are independent covenants, such as warranties, which survive the contract. Still, in all suits on entire contracts the defendants may recoup damages for unskillful performance.

If the plaintiff had relied only on the specific contract set forth in the complaint, the issues would have then been limited to the existence of a contract and its performance, but he also claimed to recover on a qitcmtum meruit; that is, the sum that his services were fairly and reasonably worth. The defendant denied that the services were of the value claimed, and this raised an issue as to such value. Under this issue it would seem competent for the defendant to show that the services were unskillfully performed, as well as for the plaintiff to show that they displayed great skill. These facts would affect the value of the services. Such evidence would be competent in other actions on a quantum meruit, either for services or goods sold (see note to Runyan v. Nichols, supra), and, unless we can distinguish actions by physicians or lawyers from other actions for services, the same rule must obtain.

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

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

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


text:
    The People of the State of New York ex rel. Roswell W. Keene, Respondent, v. The Board of Supervisors of Queens County, Appellant, Impleaded, etc.

      Mandamus — costs in the General and Special Terms on a reversal in the Court of Appeals — when the gra/nting of them at Special Term is disaretiona/ry— sections 2086 and 3228 of the Code of Civil Procedure — demurrer to am, alternative writ.

    Where the Court of Appeals reverses the decision of the General and Special Terms of the Supreme Court which sustained a demurrer to an alternative • writ of mandamus, with costs to the defendant, and grants leave to the defendant to answer on payment of costs, the relator'may properly apply to the Special Term for an order granting him the costs of the Special Term. The granting of such an order is discretionary with the Special Term, as the relator is not entitled to such costs, as a matter of right, under section 2086 of the Code of Civil Procedure, inasmuch as the mandamus, though strictly a remedy at law and not in equity, does not fall within the terms of section 3228 of the Code of Civil Procedure.
    The General Term will, upon application to it, determine the matter of the award of costs in that court.
    Appeal by the defendant, The Board of Supervisors of Queens County, from so much of an interlocutory judgment of the Supreme Court, entered in tbe office of the clerk of the county of Kings on the 27th day of June, 1894, as awards to the relator the costs of the trial at Special Term, and costs and disbursements of the appeal to the General Term; also from that portion of an order made at the Kings County Special Term on the 26th day of June, 1894, and entered in the office of the clerk of the county of Kings, as awards to the relator the costs of the trial at Special Term and costs and disbursements of the appeal to the General Term, and, on such taxation of costs being made by the clerk of the court, allows the defendant to answer the alternative writ of mandamus on payment thereof; also from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of July, 1894, denying the defendant’s motion to vacate or modify the judgment entered herein on the 27th day of June, 1894.

      F. II. Vmi Veehten, for the appellant.

      Roswell W. Keene, respondent, in person.
   Cullen, J.:

These are three separate appeals, one from an interlocutory judgment, and two from orders of the Special Term. It is unnecessary to state their character further than to say they go to a single point, the right of the relator to the costs of this court at Special and General Terms.

An alternative writ of mandamus was issued to the appellant, to which it demurred. The demurrer was sustained at Special Term and at General Term, with costs to the defendant in each instance. The Court of Appeals reversed the judgments of the General and Special Terms “ with leave to the defendant to answer on payment of costs.” The relator then applied to the Special Term for an order granting him the costs of the General Term and the Special Term, which was granted.

We think that under section 2086 of the Code of Civil Procedure, as to mandamus, and from the fact that mandamus, though strictly a remedy at law and not in equity, does not fall within the terms of section 3228, the relator was not entitled to these costs as a matter of right. If so, unquestionably the costs were in the discretion of this court. It is true that such costs had been awarded by this, court to the present appellant. But such awards fell with reversal by the Court of Appeals of the judgments of which those costs were the incident. Thereupon the subject-matter of costs was before this court undetermined, and subject to the exercise of its discretion. The case of Barnard v. Hall (143 N. Y. 339) is an authority exactly in point. The Special Term properly exercised its discretion in favor of the relator. Had this court given a right judgment instead of a wrong one, he would have been granted costs in the first instance. The General Term costs, we think, could only be granted by this branch of the court. But a motion has been made to this General Term for that purpose, and that application should be granted.

The orders appealed from should be affirmed, with ten dollars costs and disbursements,- except so far as they grant the relator the costs of these proceedings at General Term, and the motion of relator at General Term for the allowance of such costs should be granted.

Brown, P. J., and Dykman, J., concurred.

Orders affirmed, with ten dollars costs and disbursements, except so far as they grant to relator costs of this proceeding at General Term, and motion of relator at General Term for allowance of such costs is granted.


author: Dykman, J.:

text:
    The People of the State of New York, Respondent, v. Orrin Fridy, Appellant, Indicted with John Bruce and Judson Fridy.

      Trial and conviction, of a prisoner ofburgla/i'y —false testimony of a witness affords ground for a new trial — a judgment of conviction reversed, beca/use of the admission of testimony as to how defendant “looked.”

    Upon the trial of a prisoner under an indictment a witness jointly indicted with the prisoner testified that the prisoner was guilty and that he, the witness, had nothing to do with the crime. The prisoner was found (guilty and the next day such witness pleaded guilty under such indictment.

      Held, that as it was by no means certain that the prisoner would have been convicted without the testimony of such witness, the prisoner was entitled to a new trial.
    Upon the trial of a father under an indictment for the stealing of chickens, testimony introduced by the prosecution that a son of the prisoner who had been jointly indicted with his, father for the same offense “looked like a boy that had come out of a hen roost,” and that he “looked sneaking,” is inadmissible in evidence, and if it be properly objected to, and an exception be taken to the ruling of the court admitting the same in evidence, the reception thereof forms a good ground for the reversal, upon appeal, of a judgment of conviction.
    Appeal by tbe defendant, Orrin Fridy, from a judgment of tbe Court of Sessions beld in and for tbe county of Dutchess, rendered on the 8th day of August, 1894, upon the verdict of a jury convicting him of the crime of burglary in the third degree, and also from an order entered in said clerk’s office on the 8th day of August, 1894, denying the defendant’s motion for a new trial on the ground of newly-discovered evidence and upon all the grounds stated in section 465 of the Code of Criminal Procedure.

      A. M. & O. Ccvrd, for the appellant.

      Horace D. Hufcut, District Attorney, for the People, respondent.
   Dykman, J.:

These three men were indicted by the grand jury of Dutchess county for burglary in the third degree.

The specific allegation in the indictment was that on the 2d day of January, 1894, they feloniously broke open the hen house of John W. Free with intent to steal his goods and chattels, and did steal and carry away eighty barnyard fowls of the value of fifty dollars.

Orrin Eridy was tried separately on the 6th day of August, 1894, and was convicted and sentenced to the State prison for two years.

Upon his trial, John Bruce was called as a witness by the People, and testified that Eridy came to his house in the morning of January third about four-thirty o’clock with a load of bags containing chickens, and that he, Bruce, had nothing to do with the stealing of the chickens. ■ ■

The next morning Bruce withdrew the plea of not guilty which he had previously interposed to the indictment, and pleaded guilty thereto.

Bruce requested the court to suspend sentence upon them because he had testified against Eridy upon his trial and aided in convicting Man. To that request the court replied : That he should consider it; that he could not see how a man could swear one day that Eridy was the guilty party, and after Fridy was convicted that he should then plead guilty, and look for any sympathy from the court.” The court did, however, reserve the sentence upon Bruce.

Thereupon, Eridy and his lawyer made affidavits reciting the foregoing facts, and his counsel made a motion to the court for a new trial thereon. The motion was denied, and the defendant has appealed from the judgment of conviction and from the order denying the motion for a new trial. It will be convenient to consider first the appeal from the order.

It is by no means certain that the defendant would have been convicted without the testimony of Bruce. If the case had been sent to the jury destitute of that evidence it would have been quite weak and doubtful. Starting with the conceded guilt of Bruce, the circumstances might have received an explanation consistent with the innocence of Fridy.

The chickens were found in the house where Bruce resided, although it belonged to Eridy, and he had the use of a room or two in the house. That fact, therefore, weighs as heavily against Bruce as it does against Eridy.

The fact that there were feathers in the top of the boot of the defendant on the day of his arrest, is entitled to only slight consideration, especially as it does not appear what kind of feathers they were, further than that there was one large feather. There were feathers in the room where the chickens were found, and the defendant was there. These feathers may have adhered to his boots there. Moreover, there were feathers in the court room where the feathers adhered to his boot. There was a square box wagon at Bruce’s place with blood on the axle and running gear, and the defendant had such a wagon. It is fair to assume that the chickens were brought to the house in that wagon, but that assumption does not aid us, as our inquiry relates to the person who did the business.

So the least that can be said in favor of the defendant is that without the testimony of Bruce the case made against the defendant would have been doubtful. He had a property right in the doubt, and he has been deprived thereof. The case went to the jury with the testimony of Bruce that he was innocent, but with his guilt established the case presents a very different aspect.

The testimony and the surrounding circumstances point much more directly to Bruce than they do to Fridy.

As the defendant must be allowed the benefit of doubts in all stages of his case, and as we conclude there will be a doubt about his guilt with the conceded guilt of Bruce, we think he should be allowed an opportunity to present his case to the jury upon the facts as they exist, unclouded by the false testimony of Bruce.

In view of our conclusion to grant a newr trial upon the motion of the defendant, it is not necessary to make an extended' examination of the appeal from the judgment. The evidence as it stood with the testimony of Bruce, was sufficient to support the verdict, but the record discloses this occurrence upon the trial: Jacob Osterhout was a witness for the prosecution, and in his direct examination, in speaking of an interview he had on the third day of January, the day after the larceny, with Judson Fridy, the son of the defendant, who was indicted with his father, the witness said, He looked like a boy that had come out of a hen roost. Q. What do you mean by that ? A. He looked sneaking, if you know how that is.

“ Defendant moves to strike out his answer about looking sneaking. Motion denied. Exception.”

The first exclamation seems to have been voluntary, and the responsibility for it rested only upon the witness, and if promptly stricken from the record it might have been harmless, but when the publie prosecutor elicited an explanation or further opinion it was a little less than an outrage upon the rights of a man undergoing a criminal prosecution.

It is impossible to suppose the remark harmless, for it was palpably harmful. The jury may well have assumed it to be legitimate proof, and the description would present a hideous picture to the mind of any jury.

■ We think the exception presents an error which is fatal to the conviction.

The judgment of conviction and the order denying the motion for a new trial should be reversed, and a new trial granted.

Brown, P. J., and Cullen, J., concurred in result.

Judgment and order reversed, and new trial granted.


text:
    John W. Macy, as Trustee, etc., for Alfred E. Hildick, Appellant, v. David T. Williams and Another, as Executors, etc., of Benjamin L. Guion, Deceased, Respondents. John W. Macy, as Trustee for Martha A. Guion, Appellant, v. Same, Respondents. John W. Macy, as Trustee for Julia D. Hildick, Appellant, v. Same, Respondents.

      Deposit in a savings bank by one person “in trust" for another — when a trust is not created thereby — evidence constituting the res gestee —- competent 'to show the real motive of the depositor'.

    Money was deposited in a savings bank by a person in his own name in trust for other designated persons, who did not know of the existence of such bank accounts until after the death of the person máking such deposits, and the pass books containing the entries of such deposits were not delivered to the persons designated therein, but always remained in the possession of the depositor.

      Releí, that such deposits, unexplained, constituted a trust in favor of the designated persons.
    The character, however, of such transaction is not conclusively established by the mere fact of the deposits in the savings bank, so as to preclude evidence of contemporaneous facts and circumstances, constituting the res gesta, to show that the real motive of the depositor was not to create a trust, but to accomplish some independent and different purpose inconsistent with an intention to divest himself of the beneficial ownership of the fund.
    Appeal by the plaintiff, John W. Macy, as trustee, etc., for Alfred E. Hildick, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 17th day of January, 1893, upon the report of a referee dismissing the plaintiff’s complaint, and also from an order made at the Kings County Special Term and entered in said clerk’s office on the 28th day of January, 1892, granting the defendants’ motion for a reargument of their motion for an extra allowance, vacating and setting aside the order denying the defendants’ motion for an extra allowance, and granting the defendants an extra allowance.
    Appeal by the plaintiff, John W. Macy, as trustee, etc., for Martha A. Guión, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 17th day of January, 1893, upon the report of a referee dismissing the plaintiff’s complaint, and also from an order made at the Kings County Special Term and entered in said clerk’s office on the 9th day of June, 1892, granting the defendants’ motion for an extra allowance.
    Appeal by the plaintiff, John W. Macy, as trustee, etc., for Julia D. Hildick, from an order of the Supreme Court, made at the Kings County Special Term and entered in said clerk’s office on the 28th day of January, 1892, granting the'defendants’ motion for a reargument of their motion for an extra allowance, vacating and setting aside the order granting the defendants’ motion for an extra allowance, and granting the defendants an extra allowance.

      Charles W. Judson, for the appellants.

      W. W. Buckley, for the respondents.
   Dykman, J.:

These are appeals from the judgments entered in the first two above-entitled actions upon the report of a referee dismissing the complaint of the plaintiff in each case, with costs, and also from three orders granting an extra allowance to the defendants in each action. The complaint in each case alleges that the testator of the defendant Benjamin L. Guión had in his possession large sums of money, upwards of $10,000 in the M. A. Guión case, and upwards of $1,000 in the Hildick case; that Guión died, leaving such trust incomplete and unperformed; that the plaintiff had been appointed trustee in the place and stead of B. L. Guión, by order of the Supreme Court, and prayed that the defendants, as executors of Gxxion, account for the trust funds held by him during his lifetime, and pay the same to the plaintiff. The answer in all three cases contains a general denial, and alleges payment of all moneys and property in Guion’s hands, as a part of the alleged trust, and also that the plaintiff is not the real party in interest. The answer also sets up the six years Statute of Limitations in all three cases, and the ten years statute in the M. A. Guión and J. H. Hildick cases.

On the trial in the M. A. Guión case, it was proved by the plaintiff that B. L. Guión opened an account ixx the Manhattan Savings Institution on the 5th day of Juxxe, 1867, in fonn B. L. Gxxioxx for M. A. Guión, and xnade vax-ious deposits therein, amounting in all, with interest, to $9,395.27;.tlxat Guión drew out of said account all of said moxxeys ixx different axnouxxts, on differexxt days, aixd the plaintiff claims the whole axnoxxxxt of the account with interest oxx the amount of each draft from the date thereof. The plaintiff further proved that B. L. Guión opened axx account in the East Diver Savings Institutioxx oxx the 4th day of January, 1870, in foxux B. L. Guión in trust for M. A. Gxxion, aixd xnade vax-ious deposits therein; that such accoxxxxt was closed on the 2d day of April, 1877, and the balance of the accoxxxxt, amoxxnting to nineteexx dollars and twenty-nine cexxts, was traxxsferx’ed to a xxew account opened by B. L. Guión oxx that day, ixx the saxxxe bank, ixx fonn B. L. Guión in trust for M. A. Gxxion; that Gxxioxx drew out from those foregoing accounts the suxix of $23,111.78 in different amoxxnts oxx different days, and the plaintiff claixns the whole of those amounts with ixxtexest. The plaintiff further proved that B. L. Guioxx opened an accoxxnt in the Dry Dock Savings Ixxstitutioix oxx the 3d day of April, 1877, in form B. L. Guión in trust for M. A. Gxxion, axxd made varioxxs deposits therein; that Guión drew out from that account the sum of $6,056.02 iu different amoxxnts on different days, and plaintiff claims tlie whole of those amounts. On the 16th day of July, 1883, B. L. Guión opened an account in the New York Bank in the form of B. L. Onion in trust for M. A. Ouion, and made deposits therein to thé amount of $2,597.04, no part of which was withdrawn by him.

The plaintiff further proved that Ouion had collected dividends on stocks which he held in trust for M. A. Ouion, amounting to $9,112.50, which plaintiff claims with interest.

The plaintiff further proved that B. L. -Ouion had received a check from Williams and Ouion for $2,502.91, drawn to the order of M. A. Ouion, but did not claim to recover this amount. The whole amount of the claim of the plaintiff in that action is upwards of $100,000.

After the death of B. L. Ouion, the East River, Dry Dock and New York Bank books were found in Mr. Ouion’s safe, and were delivered to or taken possession of by M. A. Guión, and the amounts remaining undrawn at Ouion’s death were afterwards drawn out by her, namely, $1,972.48 from the East River Bank, $797.59 from the Dry Dock Bank, and $2,597 from the New York Bank, making in all $5,367.21.

The plaintiff’s proof on the trial in the A. E. Ilildick case was that B. L. Ouion opened an account in the Dry Dock Savings Institution on the 3d day of July, 1879, in form B. L. Ouion in trust for A. E. ITildick, and made various deposits therein; that Ouion drew out of that account the sum of $1,045 in different amounts on different days, and the plaintiff claims to recover the whole of that amount.

The plaintiff further proved that B. L. Ouion opened an account in the East River Savings Institution on the 22d day of December, 1879, in form B. L. Guión in trust for A. E. Ilildick, and made various .deposits therein, and Ouion drew out of that account the sum of $1,850, in different amounts on different days, which the plaintiff claims to recover.

On the 4th day of January, 1886, Ouion opened an account in the New York Bank, in form B. L. Ouion in trust for A. E. Ilildick, and deposited therein $500, no part of which was withdrawn by him. After Mr. Guion’s death these three books were found in Mr. Ouion’s safe, and were delivered to or taken possession of by Mrs. J. B. Hildick, the mother of A. E. Hildick, and the amounts remaining and not drawn out at Guion’s death were afterwards drawn out by A. E. Hildick: $174.44 from the East Biver Bank, $597.50 from the New York Bank, $387.04 from the Dry Dock Bank; in all $1,158.98.

The plaintiff produced no evidence of any declaration of trust respecting any of the savings bank books other than the form of the bank books themselves. There is nothing to indicate Mr. Guion’s intention in opening the accounts in the way he did, and the plaintiff’s only evidence of the existence of the trust is the bank books, in form “in trust.” Neither M. A. Guión nor A. E. Hildick knew of these bank accounts, until after Guion’s death, and the books had not been delivered to them or to any one else, but had always remained in Guion’s possession. All the money depositéd in the savings bank belonged to B. L. Guión.

In the case of Martin v. Funk (75 N. Y. 134) it was decided by the Court of Appeals that such a deposit unexplained constituted a trust, but in the same case it was said, “It is not necessary to decide that surrounding circumstances may not be shown to vary or explain the apparent character of the acts, and the intent with which they were done.” In the subsequent case of Mabie v. Bailey (95 N. Y. 206) Judge Andrews says, in delivering the opinion of the Court of Appeals: “ The court in Martin v. Funk left undecided the point whether in respect to such a transaction surrounding circumstances may not be shown to vary1 or explain the apparent character of the acts, and the intent with which they were done.’

“ If it was now necessary to decide that point, I should incline to the opinion that the character of such a transaction as creating a trust is not conclusively established by the mere fact of the deposit so as to preclude evidence of contemporaneous facts and circumstances constituting res gestee, to show that the real motive of the depositor was not to create a trust, but to accomplish some independent and different purpose inconsistent with an intention to divest himself of the beneficial ownership of the fund.”

While, therefore, the opening of the accounts by Guión in the different banks in the names he did, constituted a trust without explanation, it becomes necessary to ascertain whether the facts and circumstances surrounding the transaction disclose a motive on the part of Guión to create a trust in favor of the several persons named in the bank books as beneficiaries, or whether his real motive was to accomplish an independent and different purpose, inconsistent with the intention to divest himself of the ownership of the property.

A preliminary statement of certain facts and circumstances will conduce to a better understanding of the situation. B, L. Guión died in March, 1887, leaving a last will and testament, and the defendants in these actions qualified as executors thereof.

In June, 1887, the executors opened the safe of Guión in the Stuyvesant Safe Deposit Company, and among other property found there were eighteen savings bank books, one in the name of B. L. Guión personally; two, Mrs. J. D. Hildick; four, Mrs. J. D. Hildick, in form in trust for her two children, Alfred E. and Eleanor Hildick; two, B. L. Guión, in form in trust for M. A. Guión; three, B. L. Guión, in form in trust for A. E. Hildick ; three, B. L. Guión, in form in trust for E. Hildick; one, B. L. Guión, in form in trust for H. Hunt; one, B. L. Guión, in form in trust for Mary G. Hunt; one, B. L. Guión, in form in trust, for Isaac M. Hunt. Mrs. Guión took possession of the two books in form in trust for herself. Mrs. Hildick took possession of the twelve books in her own name individually, or in form in trust for her children, and Isaac M. Hunt took the books in form in trust for himself and Mary G. Hunt and II. Hunt, who were his .sisters.

Benjamin L. Guión, the defendant’s testator, died in March, 1887, at the age of eighty-two years.' Eor upwards of twenty years before his death he had not been engaged in business other than investing and taking care of his money and stock speculations. He lived on the income of his money without any business. He deposited his money in savings banks in almost all cases in form in trust for other persons related to him by blood or marriage. At least twenty-seven of the accounts opened by Guión in form in trust were so opened without the knowledge or consent of the persons whose name Guión used, and the anoneys belonged to Guión in each case. He treated the accounts absolutely as his own, withdrawing funds from each account and making new deposits therein from time to time, and in most cases closing the accounts. The persons whose names Guión used never saw or heard of the accounts until after his death, and some of them not until the books were offered in evidence on the trial. The total amount of deposits made by Guión, with interest, amounts to upwards of $80,000, in the accounts in form in trust and only $26,000 in his personal account. These acts are very significant; they show the line of conduct adopted by Guión when he intended to create a trust. He did not retain the bank books in his possession, but delivered them to the beneficiaries and informed them that the account was opened for them. He neither deposited in that account thereafter, nor drew •any money therefrom. In all the other accounts he continued his deposits and withdrawals, closed up many of the accounts and surrendered the bank books to the banks, without communicating with .any of the persons whose names lie used; he treated the money and the books as his own. It is inconceivable that Guión intended to •divest himself of the beneficial ownership of his property, as he was dependent upon his income for the support of himself and his wife, and had not been in business for upwards of twenty years before his death. To hold that his intention was to create trusts by the deposit in the savings banks is to hold that he deliberately not only stripped himself of all means of support, but also rendered himself liable for much more money than he ever had. Yet Guión is eon■eeded by all to have been a man of sound business and financial ability, good sense, high moral character and unquestioned integrity. The memorandum found in Guion’s safe after his death to the effect that the bank books belonged to those in whose names they stood, falls far short of repelling the natural inference to be drawn from all the other facts and circumstances in the case. In the case of Beaver v. Beaver (117 N. Y., at page 430) Judge Andrews, in delivering the opinion of the Court of Appeals, said this: “ We -cannot close our eyes to the well-known practice of persons depositing in savings banks money to the credit of real or fictitious persons, with no intention of divesting themselves of ownership. It is attributable to various reasons; reasons connected with taxation, rules of the bank limiting the amount which any one individual may keep on deposit, the desire to obtain high rates of interest where there is a discrimination based on the amount of deposits, and the desire on the part of many persons to veil or conceal from others knowledge of their pecuniary condition.

In most cases where a deposit of this character is made as a gift, there are contemporaneous facts or subsequent declarations by which the intention can be established independently of the form of the deposit. We are inclined to think that to infer a gift from the form of the deposit alone would, in the great majority of cases, and especially where the deposit was of any considerable amount, impute an intention which never existed, and- defeat the real purpose of the depositor.”

The foregoing remarks are peculiarly applicable to this case, and -.in our view the facts and circumstances disclosed repel the presumption of any intention to create a trust.

We think the referee reached a correct conclusion, and the judgments in both cases should be affirmed, with costs.

The three orders for additional allowance should be affirmed, with ten dollars costs in one case only, beside disbursements.

Brown, P. J., and Cullen, J., concurred.

In the first two above-entitled actions judgment affirmed, with costs, and in the three above-entitled actions the order affirmed, with costs.


author: Dykman, -J.: CulleN, J.:

text:
    William M. Peard, Appellant, v. The City of Mount Vernon, Respondent.

      Street railway — right and duty to remore snow from, its tracks — liability of a city for injuries caused by ice on its streets.

    A legally organized corporation, possessing a charter right to operate a surface railroad through the street of a city, is not only authorized, but is under a legal obligation, to do so in the interests of the public, and, being so required to move its cars over its road, it is authorized to remove the snow from its tracks to prevent their obstruction and to enable it to operate its road.
    Such right is analogous to the duties of owners of property upon a street in a city or village; both are under obligation to remove the snow, the one from its tracks and the other from his sidewalk, and when the sidewalks'of such city or village or the tracks of the railroad are suddenly covered with ice, which it is not practicable to remove, neither the owners nor the municipal authorities, nor the street surface railroad company, are guilty of negligence if they wait the return of mild weather to dissolve the ice and relieve the street and tracks, from the accumulation of ice.

      Something more than the presence of ice, the result of a low winter temperature, must be shown to make a city chargeable with negligence. ’ The fact that, for more than two weeks preceding an accident, the mercury had been below the freezing point, and that the city did not accomplish impossibilities or display unreasonable and extraordinary diligence, furnishes no ground for imposing a liability upon it for the consequences of the accident to the person injured.
    Municipal authorities are not insurers of travelers on the public ways, and they are not required to meet every emergency. Their duties are not imperative. They are required to do no more than to exercise ordinary care and use ordinary diligence in any situation in which they may be placed.
    Appeal by the plaintiff, William M. Peard, from a judgment of the Supreme Court in favor of tbe defendant, entered in the office of the clerk of the county of Westchester on the 6th day of June, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Westchester Circuit.

      Joseph 8. Wood, for the appellant.

      Devoid 8wits, for the respondent.
   Dykman, -J.:

This is an action for negligence based upon the following facts: First street, in the city of Mount Vernon, runs east and west, and through its center is laid a single-track horse railroad. The street is forty-seven feet wide, exclusive of the sidewalk. From the curb on the south side of the street to the south rail of the railroad it is about ten feet; between the rails there is a space of about five feet, and from the north rail to the north curb the space is about thirty-two feet.

The Vinter of 1892 and 1893 was very severe, and during that winter the railroad company had removed the snow, as it fell, from its track, and heaped up a mass of snow on both sides of its tracks. During the two weeks preceding the accident there were snow storms and frequent rains, which froze as they fell. The snow was banked up from the railroad and sidewalk upon the street, and, at the time of the accident, there was an accumulation of snow and ice, which had been frozen together for some time. At the place of the accident the bank was about fifteen inches high. The plaintiff, in his testimony, said: “Asa matter of fact, the entire length of this street, on the eighth day of March, on each side of this ear track, was banked, up by a large embankment of snow and ice frozen solid. When I entered the street I saw that it was in a bad condition.”

On the 8th day of March, 1893, the plaintiff was riding in a surrey along First street, going east on the north side of the railroad. His vehicle was drawn by one horse, which was driven by a driver. There was an empty coal wagon a few feet in front of the plaintiff’s carriage, and the plaintiff’s driver undertook to pass the coal wagon on its right. When the head of the plaintiff’s horse reached the hind wheel of the coal wagon, the driver of that wagon started his horse on a trot, and the horse of the plaintiff started suddenly aside; that sudden movement caused the horse to slip, and, in his struggles to regain his feet, the hind wheels of the surrey were forced upon the tracks of the railroad. The surrey was overturned and the leg of the plaintiff was broken.

The cause was tried at the Circuit, where the plaintiff was non-suited, and he has appealed from the judgment entered against him.

The snow, which had accumulated in the street where the plaintiff received his injuries, had been thrown from the bed of the railroad and from the sidewalk. It had been solidified by the falling rain, which froze as it fell, and it had become a solid, compact body of snow and ice.

The railroad company is a legally organized corporation possessing a charter right to operate its railroad through the street in question. Not only has it such right, but it is under a legal obligation to do so in the interest of the public. Where the end is required the means are authorized. As the railroad corporation is required to move its cars over the road, it is authorized to remove the snow from the track to prevent its obstruction and enable it to operate its road.

Such right is analogous to the duties of owners of property upon a street in a city or village. Both are under obligation to remove the snow, the one from its tracks and the other from his sidewalk. (Dixon v. Brooklyn City & N. R. R. Co., 100 N. Y. 170.)

In the severe winters of this climate, however, it not infrequently happens that the sidewalks of a city or village are suddenly covered with ice, which it is not practical to remove, and, in such ■ a case, neither the owners nor the municipal authorities are guilty of negligence if they await the return of mild weather to dissolve the ice and relieve the street. (Taylor v. Yonkers, 105 N. Y. 206.)

There is no reason why that rule should not be extended in this case. It was lawful and proper to throw the snow from the sidewalk and the railroad into the street, and during a week or two prior to the accident there used to be snow storms almost every .day, and frequently rain, which froze as it fell. It was a very severe winter,” and the street from the north rail of the railroad to the curbstone was filled with solid snow and ice at least fifteen inches deep.

So, we have the case of a constant accumulation of snow and ice for about two weeks previous to the accident, without proof of any intermission between the storms. In fact, the positive proof-that there had been falls of snow anc| rain every few days leads to the conclusion that the intervals between the storms were quite limited in duration. There had been no opportunity to remove the obstruction subsequent to its accumulation even if its removal had been practicable. But with the resources available and the diligence exacted by the law from municipal corporations it was entirely impracticable. The removal of the solid mass of ice which rested upon the street would require time which was not allowed and an expenditure of money beyond the resources available for that purpose.

During our inclement winters the streets of cities and villages of this State are obstructed as this one was, and accidents resulting therefrom are chai’geable to natural causes, unless 'it is made to appear that they have been negligently permitted or could have been obviated by the exercise of ordinary care.

We have already seen that no ordinary care could have preserved this street from the ice and snow which accumulated therein, and it follows, therefore, that the plaintiff failed to prove a breach of duty on the part of the defendant; without proof of such breach there could be no recovery. In the opinion in the case of Kaveny v. The Citry of Troy (108 N. Y. 575) aré these words: “ Something more than the presence of ice due to the results of a low winter temperature must be shown to make the city chargeable with negligence. The fact that for more than ten days preceding the accident to plaintiff the mercury had been below the freezing point was established without contradiction, and that the city did -not accomplish impossibilities or display unreasonable and extraordinary diligence furnishes no ground of liability.”

That language is applicable and appropriate in this case. Here the stormy and inclement weather prevailed for two weeks before the accident, and the ice in the street was entirely due to a low winter temperature.

Municipal authorities are not insurers of travelers on the public ■ways, and they are not required to meet every emergency. Their duties are not imperative. They are required to do no more than to exercise ordinary care, and use ordinary diligence in any situation where they may be placed. The cases of Kaveny v. Troy (108 N. Y. 575); Taylor v. Yonkers (105 id. 206); Harrington v. Buffalo (121 id. 147) are sufficient'authority for the statements in the foregoing opinion.

The judgment should be affirmed, with costs.

CulleN, J.:

I concur in the result, but deny the right of the railroad company to remove the snow in such manner as to obstruct the street.

BeowN, P. J., not sitting.

Judgment affirmed, with costs.


author: DvKmaN, J.

text:
    Nicholas Powers, as Administrator, etc., of Sarah Powers, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant.

      Acceptance of premiums on an insurance policy — a waiver of a forfeiture — autlm'ity of an agent ■ — not necessarily limited by his instructions.

    If an insurance company receives payment of premiums, which are in arrear, as premiums upon the policy, such payment as a matter of law will constitute a' waiver ®f the forfeiture of the policy, l>y reason of the non-payment of premiums, and will revive the policy, hut if such payment is only received subject to the granting of an application to revive the policy, then it will not be revived as a matter of law by the mere payment and acceptance of the premiums.
    In determining the authority of agents, their instructions are not necessarily controlling, and, although an agent be instructed to do one thing or to exercise only a limited authority, if he is knowingly habitually suffered to exercise a greater authority, the principal is bound by the authority he has allowed his agent to exercise, notwithstanding his instructions to the contrary.

      Appeal by tbe defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of June, 1893, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on tlie 29th day of June, 1893, denying the defendant’s motion for a new trial made upon the minutes
    The charge of the court to the jury was, in part, as follows:
    “ If they received the past premiums on that policy, the premiums that were in arrears as premiums on that policy, that, as a matter of law, would undoubtedly waive the forfeiture} and, from their acceptance of it, it would be in force. Now that you have heard the testimony. The sister tells the story of what, took place when she paid the premiums. She says that she paid the premiums; that she could not read or write, and that nothing was said of its being conditioned upon an application for a revival. On the other hand, the clerk says he cannot remember what he said to her, but that he gave her those receipts, which express that the money is received, with reference to an application made to revive the policy, but not as an absolute revival .of it. You will determine that question of fact between these parties. If they received this money as past due premiums, without any other arrangement or qualification, then that revived this policy ; but if only as an application to revive it, then it is not revived.”

      Thomas F. Magner, for the appellant.

      Charles J. Patterson, for the respondent.
   DvKmaN, J.

This action was brought upon a policy of insurance upon the life of the plaintiff’s intestate, Sarah Powers, deceased.

The defense interposed was that the policy had lapsed and become null and void by reason of the non-payment of the premiums thereon.

The- cause was tried' at the Circuit before a jury, and the plaintiff recovered a verdict. The defendant has appealed from the judgment entered upon the verdict, and from the order denying the motion for a new trial upon the-minutes of the court.

The rendition of the verdict is sufficient to justify the assumption by this court that the jury found the facts involved in favor of the plaintiff.

Inasmuch, therefore, as the evidence presented to the jury fully justified the inference that the forfeiture of the policy had been waived by the company, we discover no reason for interference with the judgment.

Upon the question of the forfeiture the trial judge charged the jury that if the company received the payment of the premiums which were in arrear as premiums upon the policy, such payment, as a matter of law, would constitute a waiver of the forfeiture and a revival of the policy, but if such payment was only received as an application to revive the policy, then it was not revived.

The trial judge further charged the jury that “ in determining the authority of agents the instructions are not necessarily controlling ; that is to say, if you instruct your agent to do one thing or to exercise only limited authority, and you knowingly habitually suffer him to exercise greater authority, you are bound by the authority you allow him to exercise, your instruction to the contrary notwithstanding.”

Those instructions contained a fair exposition of the law, and as the verdict rendered by the jury was supported by evidence we detect no reason for interference.

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

Brown, P. J., concurred; Cullen, J., not sitting.

Judgment and order affirmed, with costs.


text:
    James L. Lowry, as Executor, etc., of Austin Gibbons, Deceased, Appellant, v. Edward J. Woolsey, Respondent, Impleaded with Another.

      Mechanic's lien — when acquired by a contractor on the landlord’s interest— contract made by the tenant pursuant to an agreement to lease.

    Where improvements are made to real estate under an agreement between the tenant thereof and a contractor, the contractor may acquire a valid lien upon the interest of the landlord in the premises if the improvements are made with the landlord’s consent, and in express compliance with the terms of the agreement under which the tenant took possession of the land; but if a tenant, in the possession of real estate under an agreement to lease the same, refuses to pay rent or execute the lease, the landlord has a right to rescind the agreement, and from that time the tenant, if in the possession of the land, is a trespasser, and work done in pursuance of a contract made thereafter by the tenant for the improvement of such property would not form the basis of a valid lien, in favor of the person performing such work, upon the interest of the landlord in such premises. The failure of the owner to eject the contractor as an intruder, does not subject him to liability on the theory of'his having given his consent, if he has forbidden the contractor to continue the work.
    Appeal by the plaintiff, James L. Lowry, as executor, etc., of Austin Gibbons deceased, from a judgment of the Supreme Court, entered in the office of the clerk of tbe county of Queens on the 28th day of April, 1894, upon the report of a referee dismissing-the plaintiff’s complaint as against the defendant Woolsey upon the merits, and directing the cancellation of the mechanic’s lien to foreclose which this action was brought.

      Alex. Thcdn, for the appellant.
    IF". W. Quiver, for the respondent.
   Cullen, J.:

This is an appeal from a judgment in favor of the defendant. Woolsey, entered upon the report of a referee. The action was-brought to enforce a mechanic’s lien. The defendant Woolsey was the owner of certain lands in Long Island City. On March 20, 1888, he entered into an agreement with the defendant Henderson, by which, on May first following, a lease was to be executed by the-parties for tbe demise of tbe land to Henderson for tbe period of seventeen months, at a specified rental, payable quarterly in advance, which lease should contain certain specified provisions for the purchase and sale of the property at the option of either party. The agreement further provided that Henderson might enter upon the premises forthwith, and also contained a covenant on his part to expend before February, 1889, the sum of $25,000 in improving and preparing the lands for a race course. It was further provided that in case of default in the payment of the rent, or in any of the covenants of the agreement or the lease to be made thereunder,’ Woolsey might re-enter the land -and hold the same as before. Henderson entered under this agreement. On May first he failed to pay the rent due in advance, and refused to execute the lease, and neither rent has been paid nor lease executed since. On May eighteenth the plaintiff’s testator made a contract with Henderson for the erection of race track structures. For work done by him he filed a mechanic’s lien, the subject of this action. As to the questions of law involved on this appeal there is but little that can be added to the very clear opinion delivered by the referee’. That if the original agreement had remained in force the plaintiff’s testator would have acquired a valid lien on the interest of the defendant Woolsey in the lands is unquestionable, for the improvements were not only made with his consent, but in express compliance with the terms of the agreement under which the tenant took possession of the land. (Schmalz v. Mead, 125 N. Y. 188; Otis v. Dodd, 90 id. 341.)

The case cited by the counsel for the respondent (Cornell v. Barney, 94 N. Y. 394) arose under the old statute as to the city of New York, and has no application to the present law. But it is equally clear that on Henderson’s default and his refusal to execute the lease or pay the rent, Woolsey had the right to rescind the agreement, and from that time Henderson, if in possession of the land, would be but a trespasser. (Graves v. White, 87 N. Y. 463.)

The referee has found not only that the contract was rescinded by Woolsey, but that Woolsey notified the plaintiff’s testator that Henderson had lost liis right in the land. The evidence, we think, justified these findings. While the original plaintiff is dead and cannot contradict the statement of the witnesses as to the notice given lfim, "Woolsey testified to notice given to Lowry, tbe foreman of the workmen. It is significant that Lowry is not produced to contradict this evidence, nor is his absence accounted for. The only criticism on the rescission that can be made is that Woolsey did not forcibly oust Henderson or prevent the entry of the testator’s workmen. This, we think, he was not compelled to do. The case, in that respect, is like that of Cowen v. Paddock (137 N. Y. 188), where it was held that the failure of the owner to eject the contractor as an intruder did not subject her to liability as for a consent, it being shown that she had forbidden a continuance of the work. At the time, therefore, that plaintiff’s testator made his contract with Henderson and performed the work, Henderson was a trespasser without title, and his contract could not bind Woolsey, the owner. (Spruck v. McRoberts, 139 N. Y. 193.)

The judgment appealed from should be affirmed, with costs.

Brown, P. J., and Hykman, J., concurred.

Judgment affirmed, with costs.


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    In the Matter of the Judicial Settlement of the Account of Proceedings of Henry B. Bolton and Another, as Executors, etc., of Ann Bolton, Deceased. Henry B. Bolton and Another, Appellants, v. Sarah L. Myers and Another, Respondents.

      Executors’ accounting — contestants not estopped by their previous objections — scope of a power of sale of realty contained in a will —• extended to the payment of debts; and legacies.

    Upon an accounting by executors, by reason of the objection on the part of the' contestants that the executors could not bring a fund realized by the sale of a portion of the testatrix’ realty into the Surrogate’s Court and there account for it, the item representing such fund was withdrawn from the account. Held, that such contestants, though wrong in their original contention, having received no part of the fund to which they were entitled, were not estopped, from afterwards compelling the executors to account for the fund in that court.
    A testatrix left a will which, after providing for the payment of her debts, contained a specific devise of certain real estate and a bequest of the interest of' the sum of §1,500, and a direction to the executors to erect a monument. It then contained a clause in the following words: “ And I also give power and authority to my executors to sell any and all of my real estate either at public or private sale, whenever in their judgment they may deem for the best interest of my estate, and to give good and sufficient deed or deeds or conveyancy of the same.” Then followed a residuary clause.
    The testatrix left less than §3,000 in personalty, and her debts amounted to nearly §9,000. The will was made about two years before her death, and there was apparently no change in her pecuniary circumstances from the date of the w.ll to the time of her decease. The testatrix left a large residuary estate, ample to discharge any debt or legacy without recourse to the specific devise.

      Held, that it would be assumed that the testatrix knew her own circumstances and intended that both the debts and legacies should be paid, and that she foresaw that her personalty was insufficient for either purpose, and that to raise the necessary funds some of her real estate must be sold;
    That the devise of the residuary estate was immediate, and the power of sale granted to the executors was to be exercised for the payment of both debts and legacies;
    That had, however, the natural effect of such power of sale been to break up the general scheme of disposition of the realty, the power of sale would be held to be limited to a sale for the benefit of the devisees.
    Appeal by Henry B. Bolton and another, executors of the last will and testament of Ann Bolton, deceased, from a decree of -the Surrogate’s Court of the county of Westchester, entered in the office of the Westchester County Surrogate’s Court on the 16th day of March, 1894, settling and allowing the account of the said executors as adjusted and filed.

      Alex. Thain, for the appellants.

      James R. Marvin, for the respondents.
   Cullen, J.:

This is an appeal from a decree of the surrogate of Westchester county determining the accounts of the appellants as- executors. The substantial controversy is whether, under the will of the appellants’ testatrix the power of sale given the executors may be exercised for the payment of debts.

The will is as follows:

“ In the name of God, Amen: I, Ann Bolton, of town and county of Westchester and State of New York, being of sound mind and memory, and considering the uncertainty of this frail and transitory life, do, therefore, make, ordain, publish and declare this to be my last will and testament. That is to say: First, after all my lawful debts are paid and discharged, I give and bequeath to my daughter Catherine E. Bolton all my household furniture, beds and bedding, and my silver and plated ware, and all my clothing.
Secondly. I give, devise and bequeath to my son Henry B. Bolton the house and lot where he now resides in the town of Westchester.
Thirdly. I authorize and direct my executors to invest the sum of fifteen hundred dollars on good security, and to pay the interest and income to the trustees of the Methodist Episcopal Church at Bronxdale, in the town and county of Westchester, for the support of said church; and I also authorize and direct my executors, in case I should not do so before my death, to expend a reasonable sum in erecting a monument and putting in order the family cemetery at Woodlawn; and I also give power and authority to my executors to sell any and all of my real estate, either at public or private sale, whenever in their judgment they may deem for the best interest of my estate, and to give good and sufficient deed or deeds or conveyancy of the same.
Fourthly. I give, devise and bequeath all my estate, both real and personal, not hereinbefore bequeathed, to my children, Henry B. Bolton, Thomas Bolton, John W. Bolton, Mary A. Littlewood, Sarah L. Myers, Emily B. Norris and Catherine E. Bolton, and my adopted son, William H. Birchall, to be divided equally between them, share and share alike. Likewise I make and constitute and appoint my sons Henry B. Bolton and Thomas Bolton to be executors of this my last will and testament, hereby overlooking all former wills by me made.
“ In witness whereof I have hereunto subscribed my name and affixed seal the sixth day of April, in the year of our Lord one thousand eight hundred and eighty.
“ANN BOLTON.
“ Witness present:
“ Henry H. Bolton.
“ Sarah I. Bolton.”

The preliminary point made by the appellants, that the contestants having once insisted that the executors could not bring the fund realized by the sale of the realty into the Surrogate’s Court, and there account for it, and in consequence thereof the item having been withdrawn from the account, were estopped from afterward compelling the executors to account for the fund in that court, is plainly without merit. The contestants were wrong in their original contention, and it was so held in an action in this court for partition. They have received no part of the fund, and there is, therefore, nothing to estop them from proceeding now in accordance with what has been held to be the law, even against their contention.

The learned surrogate has held that the fund should be distributed as real estate, and that it was not applicable to the debts of the testatrix. The question is not free from doubt, but we think that this conclusion was erroneous. The case is very similar to that of Matter of Gantert (136 N. Y. 106). In both cases the question is not whether the debts are charged on the real estate, but whether the power of sale is given for the purpose of paying debts. In this respect the cases differ from that of Matter of Rochester (110 N. Y. 159).

It is found by the surrogate that the testatrix left less than $3,000 in personalty and that her debts amounted to nearly $9,000. The will was made about two years before the death of the testatrix. There is nothing to show that there was any change in her pecuniary circumstances from the date of the will to the time of her decease. By the will she gives $1,500 to be invested for the benefit of the church, and also directs the expenditure of a reasonable sum for erecting a monument, and putting in order the family cemetery. Immediately following these directions, and in the same clause of the will, is the grant of the power of sale. We should assume that the testatrix knew her own circumstances, and intended that both the debts and legacies should be paid; that with such knowledge she foresaw that her personalty was insufficient for either purpose, and that to raise the necessary fund some of the real estate must be sold. This conclusion is strengthened when we find the power of sale directly following the legacies. The learned judge distinguished the present case from the Qantert case by what lie deemed a fatal difference, that in this will there is found a specific devise to the son. The surrogate overestimated the effect of this difference. In the opinion in the Gmttert case Judge MayNAbd says: If the testator has specifically devised designated portions of his realty, or impressed them with separate trusts, the presumption is very strong and usually controlling that he did not intend that these dispositions of his property should be overturned by the exercise of a general power of sale. A direction to sell for the payment of debts cannot be implied in such cases, because in order to sustain the structure of the will there must be implied a direction not to sell for such a purpose.”

But the devise of a single piece out of her large realty does not necessarily fall within the rule stated by the learned judge. If the effect of the power would naturally be to break up the general scheme of disposition of the realty, the case would fall within the principle of Matter of McComb (117 N. Y. 378), and the power of sale be held limited to a sale for the benefit of the devisees. Here there was a large residuary estate, ample to discharge any debt or legacy without recourse to the specific devise. The devise of the residuary estate is immediate, and there would seem no reason why a power of sale should be given to be exercised for the benefit of those devisees. "We are. of opinion that in the will before us the power of sale was to be exercised for the payment of both debts and legacies.

The decree of the surrogate should be reversed, and the case remitted for further proceedings in accordance with this opinion.

BROWN, P. J., and Dyeman, J., concurred.

Decree of surrogate reversed ; case remitted for further proceedings in accordance with opinion.


author: DyKmaN, J.:

text:
    In the Matter of the Application of The Rockaway Park Improvement Company (Limited), for the Refund of a Tax Illegally and Improperly Assessed and Levied. Rockaway Park Improvement Company (Limited), Appellant. Board of Supervisors of Queens County, Respondent.

      Vire district created under section 37 of chapter 686 of 1893 — erroneous recital as to the law in a resolution of a board of supermsors m-eating it — the creation of a fire district must precede the election of commissioners, etc.

    If a board of supervisors has full power to do an act, its performance of such act is not rendered illegal by a mistake in a recital in its resolution as to the source of its power, even if the alleged source of its power to do such act is 'a repealed statute. '

      The election oí fire commissioners and a treasurer and the purchasing of property and the taking- of title thereto, under section 37 of chapter 686 of the Laws of 1892, must follow and not precede the act of the hoard of supervisors creating the fire district, and authorizing the procurement of the water supplies, and the purchasing of apparatus, and directing the levy and collection of a tax for the cost thereof upon the fire district established by it under that act.
    Appeal by tlie petitioner, the RockaAvay Park Improvement Company (Limited), from an order of the County Court of Queens county, made on the 16tb day of July, 1894, and entered in the office of the clerk of the county of Queens denying its application for an order directing the board of supervisors of Queens county to refund a certain tax levied under a resolution of said board.

      F. H. Van Vechten, for the appellant.

      A. JST. Weller, for the respondent.
   DyKmaN, J.:

While it is true that the law under which the board claims to have acted had been repealed by the County Law of 1892 (Chap. 686), and the recital of the source of power in the resolution was erroneous, yet, by section 37 of the County Law, the same powers were conferred upon the board of supervisors, almost in the same language, namely : The board has power to create the fire districts outside of incorporated villages, and authorize such district to procure supplies of water, and purchase apparatus for the extinguishment of fires therein, and rent or purchase suitable buildings for the keeping and storing of the same, and provide for the assessment levy and collection of the costs thereof on such district in the same manner, at the same time, and by the same officers as the taxes of the town or towns in which such districts are located are assessed, levied and collected, * * * upon the petition duly verified and signed by more than one-lialf of the taxable inhabitants of the proposed district.” So far, therefore, as the powers of the board of supervisors are concerned they are the same under the County Law as under the laws cited by the board, and this County Law was in existence and in full force at the time of the action of the board. If the board thus had. full power to do what it did, its action was not rendered illegal by a mistake in the recitation of the source of its power. It is true that section 37 of the County Law requires the legal voters of the district to elect fire commissioners, to take title to and hold in trust for the district all property acquired by it for fire purposes, and to make all contracts for the purposes therein contemplated and within the appropriations voted by the resident taxpayers of the district, and also to elect a treasurer to have the custody of the funds, and to pay out the same. It is not, however, necessary that the acts therein required should precede the acts of the board of supervisors, nor are the acts of the board of supervisors creating a fire district, authorizing the purchase of fire equipment and apparatus, and directing the levying and collecting of the cost thereof upon the district, required to be based upon the action of the legal voters of such district. Evidently the election of fire commissioners and the treasurer, and the purchasing of property ■and the taking of title thereto, must follow and not precede the act of the board of supervisors creating the district, and authorizing the procurement of the water supplies and the purchasing of apparatus. The addition to the law of this paragraph, and section 37, relates solely to the regixlation of the care and custody of the property and conduct of the ■ internal affairs of the district, after the board of supervisors has acted.

The petition does not show nor claim that the legal voters of the district have not strictly complied with the requirements of the additional part of the section, and in the absence of any such allegation or proof the presumption is that all of those conditions have been performed by the legal voters of the district. But it is claimed that the clause giving power to the fire commissioners to make all contracts for the purpose therein contemplated, and within the appropriations voted by the resident taxpayers of the district, in some way requires a vote of the district to precede the act of the board of supervisors creating the district and authorizing the purchase of apparatus. That clause does not in terms nor by implication declare that such vote must precede the acts of the board of supervisors, and clearly from the whole context of the section it relates to future appropriations which may be necessary to maintain the district after it shall have been first created and organized. It is claimed that the resolution No. 17 does not create a fire district at Rockaway, but only authorizes the expenditure of $10,000 to acquire a supply of water, purchase apparatus, fire equipments, etc., and that is true, but the petition shows that the district had been created in April, 1887, and all that was necessary to be done after that was to authorize the procuring of a water supply and the purchase of fire equipments, etc. This is all the resolutions undertake to do. The fire district has been created and the water supply and fire apparatus acquired at considerable expense. Its territory contains a large population and many inflammable buildings of value, and a fire department is necessary therein. To set aside the tax, therefore, and reverse the action of the board of supervisors, would create confusion in the district.

Our conclusion is that the acts of the board of supervisors áre sustained by law and should be upheld by the court, and that the order of the County Court sustaining the acts of the board should be affirmed, with costs.

BeowN, P. J., and CulleN, J., concurred.

Order affirmed, with ten dollars costs.


author: Dwight, P. J.:

text:
    Richard Degnan, Respondent, v. Walter J. Ransom, Appellant.

      Action brought against a sw'geonfor malpi'actice — evidence by defendant of reputed skill, improper where there is no allegation or proof of incompetency by the plaintiff.

    Upon the trial of an action brought against a surgeon for malpractice the com- • plaint alleged negligence and unskillfulness on the part of the defendant in the treatment of the case, but there was no allegation in the complaint nor evidence offered by the plaintiff upon £he trial to show by general reputation or otherwise that the defendant lacked the ordinary. skill which belongs to his profession; the allegations and proofs on the part of the plaintiff, so far as the skill of the defendant was concerned, being confined to the question of the degree of skill employed in the actual treatment of the plaintiff’s case.

      Beld, that the admission in evidence of testimony, offered on the part of the defendant, and received over the objection of the plaintiff, to the effect that he was generally reputed and considered to possess a high degree of skill in his profession, was erroneous, and that a new trial of the action should be granted by reason thereof.
    Appeal by the defendant, Walter J. Ransom, 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 21st day of October, 1893, granting the plaintiff’s motion made upon the minutes to set aside the verdict of a jury in favor of the defendant rendered after a trial at the Niagara Circuit and for a new trial.

      JD. E. Brong, for the appellant.

      Whedon & Byan, for the respondent.
   Dwight, P. J.:

The action was for malpractice of a surgeon. The complaint alleged negligence and unskillful ness on the part of the defendant in the treatment of the case. There was no allegation nor was evidence offered by the plaintiff to show, by general reputation or otherwise, that the defendant lacked the ordinary and competent skill which belongs to his profession. The allegations and proofs on the part of the plaintiff, so far as skill of the defendant was concerned, were confined to the question of the degree of skill employed in the actual treatment of the plaintiff’s case. But when the defendant had the case he was permitted to introduce the evidence of witnesses to the effect that he was generally reputed and considered to possess a high degree of skill in his profession. The evidence was received under the objection and exception of the plaintiff, and, a verdict having been rendered for the defendant, that exception was the ground on which the motion for a new trial was granted.

We think the admission of the evidence was error and that the motion for a new trial was properly granted on that ground. In opposing this conclusion the appellant relies upon the authority of Carpenter v. Blake (50 N. Y. 696), where judgment for the plaintiff was reversed because the judge at the Circuit said in his charge to the jury : “ I suppose it is entirely immaterial to the inquiry before you whether the defendant at the time he undertook the> reduction of this dislocation was or was not reputed to be, or was or was not a skillful surgeon; the question is, did he bring to the treatment of that particular case the degree of skill to which I have referred ? ” The language here quoted is found in the report of the case at General Term (60 Barb. 490, 516), where the charge was unanimously upheld. There is only a brief memorandum of the decision of the case in the Court of Appeals {supra), and from that memorandum it appears that the objection to the charge above mentioned was sustained by only a majority of one in that court. The authority of that decision is, therefore, not to be extended beyond the limits fixed by the particular case, and that was a case where, as appears from the report in Bar<*our (supra), the complaint alleged that the defendant “ represented himself to be * * * a scientific, skillful and competent physician and surgeon,” and that the plaintiff “ by the ignorant, unskillful, careless and negligent treatment by the defendant was greatly damaged,” etc. This allegation seems to have been regarded as putting in issue the general skill ahd intelligence of the defendant and to have justified the introduction of evidence of his general character in that respect. But by that particular allegation the case of Carpenter v. Blake is distinguished from the case at bar. Here is no such allegation. Here ignorance is not charged, and unskillfulness only in the treatment of the particular case.

It is a little difficult' to see, on principle, how the general character of the surgeon can ever be material to the inquiry whether he has been guilty of malpractice in a particular case; because it is certain that, though he be the merest pretender to surgical skill, the veriest quack, yet, if by chance he treats the particular case correctly, he is not guilty of malpractice; and, equally, though he be a master in his profession, yet, if through neglect to apply his skill in the particular, case he treats it improperly, the patient may have his action. However, we concede the authority of Carpenter v. Blake within its limitations, but do not find it, necessarily, to include the case in hand. IJpon the pleadings and proof in this case we think the motion for a new trial was properly granted, and the order should be affirmed.

Haight, Beadlev and Lewis, JL, concurred.

Order granting new trial appealed from affirmed, with costs of this appeal to respondent.