author: Bosworth, J. Duer, J.

text:
    Leonori, Respondent, v. Bishop, Appellant.
    Evidence, that the general character of a -witness for truth and veracity is good, is inadmissible, unless such general character has been attacked by witnesses examined in relation to it, or unless extrinsic facts have been proved which tend to impeach it. , -
    If such evidence be received against the objection and exception of the adverse party, a new trial will be granted for that reason.
    (Before Duer and Bosworth, J.J.)
    March 13; March 24, 1855.
    This action was brought to recover damages for the conversion, by the defendant, of personal property alleged to belong to the plaintiff. It was tried on the 10th of May, 1854, before Mr. Justice Duer and a jury. One Charles Lupton was examined on behalf of the plaintiff, and gave evidence tending to show that the property was owned by the plaintiff.
    Evidence was given, which, if credited, would justify the inference that Lupton was inaccurate in respect to some material matters deposed to by him. It appeared that he executed a bill of sale of this and other property which stated it to be .free and clear of any incumbrance. This was executed while the plaintiff owned the property. When the defendant rested, one R. G-. Leonori, who had been examined as a witness for the plaintiff, was recalled by plaintiff’s counsel, who “asked the witness whether he was acquainted with the general character of Charles Lupton, or whether, from such his knowledge, he would believe him on oath.”
    The defendant’s counsel objected to this inquiry and examination, on the ground that no witness had been called or examined by the defendant to attack the general character of the witness Lupton; that the bill of sale went to contradict the witness on a distinct fact sworn to by him, and did not authorize proof as to his general character; but the court overruled the objection, and permitted the inquiry, to which decision and ruling the defendant by his counsel excepted.
    The witness thereupon testified that he was acquainted with the general character of Charles Lupton, and from his acquaintance with his general character, would believe him on oath in a court of justice.
    Exceptions were also taken to portions of the charge to the jury, which it is deemed unnecessary to state. The jury found a verdict for the plaintiff, and from the judgment entered thereon, the defendant appealed to the General Term.

      H. U. Huntington, for Appellant.

      C. G. Egan, for Respondent.
   Bosworth, J.

The admission of evidence, to prove that the general character of Lupton for truth and veracity was good, is an error, for which the judgment must be reversed.

A party is not allowed to give evidence that the general character-of his witness is good, unless it has been attacked by witnesses of the adverse party, or unless extrinsic facts have been elicited by his cross-examination, going to impeach his general character. (The People v. Hulse, 8 Hill, 309; Starks v. The People, 5 Denio, 106.)

Lupton’s general character had not been assailed by any evidence that had been given. At most, his accuracy as to some particular facts had been discredited by evidence which fell short of impeaching his general character. A new trial must be granted solely on the ground, that evidence in support of Lupton’s general character was admitted, against the objection of the defendant. "We think there was no error in any of the parts of the charge which were excepted to.

Duer, J.

Yielding to the weight of authority, I concur in granting a new trial — but I do so, I own, with great reluctance. In my opinion, the ruling on the trial is fully justified, not only by the reasoning óf Mr. J. Cowen, but by the decision of the court, in the People v. Rector, (19 Wend. 569,) which was followed in the People v. Carter, (2 Hill, 319.) But these cases,-1 am also of opinion, were in effect overruled by the subsequent decision of the same court, in the People v. Hulse, (3 Hill, 369,) and I find upon inquiry, that the rule laid down in this last case, namely, that evidence of the good character of a witness can only (be received when his character has been attacked by the adversé party, has been uniformly followed in this court. The question therefore, at least in this court, can no longer be considered as open '; but were it so, and could it now be determined by an appeal to reason and good sense, I should not hesitate to hold that evidence of the good character of a witness ought to be admitted, in every ease, in which the veracity of the witness, and not merely the truth of his testimony, is denied by the adverse party. An attack ujjon the moral character of a witness is permitted because when successful, it creates a probability that he has sworn falsely in the testimony that he has given; and it cannot be denied, that an opposite probability ⅛ created when the character, of the witness, as a man of integrity and truth, is fully established. It therefore seems to me, that the evidence is in its nature, corroborative, and as such, ought to be admitted in every case in which intentional falsehood, no matter upon what ground, is imputed to a witness. There is a fallacy in the assertion that when the general character of a witness has not been impeached -by the adverse party, it' is admitted to be good. All that is admitted is, that his character cannot be shown to be positively bad, but this is no reason for excluding evidence to show that it is positively good— nor is it difficult to see, that in many casés, the exclusion of such evidence may be a source of error and injustice. The relation given by a witness may be very improbable in itself, yet perfectly true, for experience attests the justness of the observation, that truth is not unfrequently stranger than fictionbut it is ob-vieras, tliat the improbability of tbe relation, may lead a jury to discredit a witness, whom, if it was clearly proved to them that he was a man distinguished for his probity and strict adherence to truth,, they would not hesitate to believe. It is obvious that the probability that he had sworn truly, arising from the moral excellence of his character, might very reasonably outweigh, in the minds of the jury, the opposite probability, arising from the nature of the facts to which he had testified.

In judging of the credit to be given to a narrative, where the facts are remarkable and unusual, we are all of us governed by the knowledge we have, or the estimate we have formed, of the moral character of the person from whom the narrative proceeds; and it is not easy to understand, why the evidence that determines the judgment of every reasonable person, in the ordinary transactions of life, should be withheld from the consideration of a j™7-

As it seems, however, that the law is otherwise settled, and that the evidence given on the trial of the good character of a witness, whose veracity was denied, was improperly admitted, there must be a new trial.

       By a recent decision in the Court of Appeals the rule laid down in the People v. Hulse, is definitively settled to be the law. (The People v. Gay, 3 Selden, p. 378.)


source: Caselaw Access Project

author: Oakley, Ch. J.

license: Public Domain

text:
    Joseph T. Gilbert and Austin S. Tuttle v. Theodore Beach.
    The owner of a building which is in a course of construction under a contract, is not answerable for injuries to a third'person, which appear to have been ocea, sioned solely by the negligence or misconduct of the contractor or his servants.
    But an action for damages is maintainable against the owner, when an act of the contractor resulting in an injury to third persons, appears to have been done in execution of the contract, and in accordance with its terms.
    So when an act of the contractor creates a nuisance, the owner, if he suffers it to remain, is liable to every person whose rights or interest it may injuriously affect.

      Held, that as the case before the court did not fall within either of these exceptions, the defendant xras entitled to a judgment, dismissing the complaint, with. costs.
    (Before Oaklet, Ch. J., Dder and Campbell, J. J.)
    March 9; March 31, 1855.
    - The action was brought to recover damages for the injuries done to certain premises belonging to the plaintiffs, by flooding the same with water, by means of a gutter and water-spout attached to a building owned by the defendant.
    The complaint charged, that on or. about the tenth day of August, in the year one thousand eight hundred and fifty-two, and for some years previous, and thence to the present time, the' plaintiffs were the tenants and occupants of a certain lot of land, store and premises known and distinguished as No. 20 in Court-land street, in the city of New York, and on the- north side of, said Courtland street, running back therefrom, northwardly, towards Dey street, in said city; that the said’Theodore Beach, during the period'aforesaid was the owner and occupant of a certain lot or parcel of land and premises on the south side of said: Dey street, and butting, bounding and adjoining the said lot and premises of the plaintiffs.
    And that.the defendant, so being the owner and occupant of the lot and parcel of land last aforesaid, on or about the day and year first aforesaid, had then constructed thereon a large building, and by means of a gutter and water-spout attached to the building by him so erected, turned and caused to be turned and flowed in upon the lot, store and premises of the plaintiffs, a large quantity of water from the roof of the defendant’s said building, thereby flooding the said lot and premises of the plaintiffs, and the lower "story or sub-basement of their said store, and greatly injuring and damaging the same, and also a large quantity of goods of the plaintiffs then being in said sub-basement, 'and compelling the plaintiffs to be at great labor and expense in removing the water from their said store and premises, and demanded judgment for $1,000, as damages.
    The defendant in his answer admitted that the plaintiffs were tenants and occupants of the premises,'No. 20 Courtland street,described in the complaint at the time specified in the" same, and that he was owner of certain premises in Dey street, described in the complaint, at the time last mentioned; but denied that he was occupant of the last mentioned premises, on or about tbe 10th day of August, A. D., 1852, and averred that the same were, at that time, in the occupancy and under the control of. certain contractors, who had heretofore contracted to erect and finish the building of defendant, mentioned in the said complaint; that the said contractors were exercising an independent employment in the construction of the said building, and that the defendant had no right to control them in the performance of the same. That if any water-spout and gutter were attached to the said building, which caused any damage to the plaintiffs, the same were, and each of them was attached by persons in the employ of the said contractors, or one or more of them, and was in no respect the act of this defendant, or his agent, or servants. That no gutter and spout, such as is described in the complaint, was designed by the plan in accordance with which the said contractors agreed to erect the said building.
    The answer also denied each and every allegation in the complaint not expressly admitted.
    The cause was tried before Duer, J., and a jury, in May, 1854.
    On the trial a number of witnesses were examined on the part of the plaintiffs, to prove that their store and goods were damaged by water flowing from a gutter and water-spout, attached to a building in Dey street, which the defendant was then erecting.
    On the part of the defendant, it was proved, that all the work on his building, carpenters’, masons’, plumbers’, &c., was done under special contracts, none of which were completed, when the store and goods of the plaintiffs were injured in the manner complained of, and that if the injuries for which damages were claimed, were occasioned by the negligence of any persons, those persons were the contractors, their agents, or servants. And upon this proof the counsel for the defendant insisted that the complaint ought to be dismissed, or that the court should charge the jury to render their verdict for the defendant.
    The Judge said that for the purposes of the trial he should instruct the jury that the agents and servants of the contractors were to be deemed the agents and servants of the defendant, who was to be held responsible for their acts, if any, of commission or omission which had occasioned the damage of which the plaintiffs complained.

      The Judge charged the jury-accordingly, and the counsel for the defendant excepted to that portion of his charge.
    The jury, upon the questions of fact submitted to them, found a verdict for the plaintiffs, and assessed their damages at $225.
    • The verdict was taken subject to the opinion of the court at General Term upon the exception to the charge, with liberty to the court to dismiss the complaint, or direct a verdict and judgment thereon to be entered for the defendant.

      F. W. Chester, for the plaintiffs,
    now moved for judgment upon the verdict, and argued substantially as follows:
    The principal ground of defence taken on the trial, and the sole ground that can now be urged, is that the defendant had contracted with certain persons to construct- the building which had caused the damage, and that the damage was owing to the acts or negligence of the sub-contractors or workmen employed by these contractors, and that there being no relation of master and servant, and no privity whatever between those sub-contractors and workmen and the defendant, he is not responsible, upon the principle established in BlaJce v. Ferris, (1 Selden, 48,) for their' acts or omissions; but the argument for the defendant overlooks the fact that the defendant is and was the owner of the building, by the state and condition of which the damage was occasioned,- and we insist, with confidence, that the decision in BlaJce v. Ferris "does not touch the case of damage caused by the condition in which an owner puts Ms house or lands, or suffers them to remain. The owner in such cases has always been held to be answerable, and cannot shift the responsibility upon others. He is answerable because the property is his,- and not because he is the immediate superior of the persons employed on it. He is answerable because, not only the property, but the possession is his, and not that of the contractor or contractors, since whatever may be the terms of the contract he may have made, it is in his power, at all times, to dismiss and turn away all who may be employed on his premises, and this power he is bound so to exereise as to prevent any injury resulting to tMrd persons from their acts or negligence.

      L. B. Shephard -for the defendant, contra.
    It. is manifest from the evidence and is not denied, that the damage for which the plaintiffs seek a compensation is imputable solely to tbe negligence of tbe workmen and servants of tbe contractors, and in no degree to tbe defendant, wbo _ does not appear to bave bad any knowledge whatever of tbat condition of bis building by wbicb it is asserted tbat tbe damage was occasioned. Acs tbe contractors, however, were exercising an independent employment, in wbicb neither they nor their workmen ,or servants were subject at all to tbe direction and control of tbe defendant, be cannot be held responsible for-their acts and omissions, unless tbe decision of the Court of Appeals in BlaJce v. Ferris"'may be contemned and set aside. We rely upon tbat decision as having settled tbe law in favor of tbe defendant, and therefore ask tbat tbe complaint may be dismissed with costs. In addition to' BlaJce v. Ferris, tbe .counsel cited Stevens v. Armstrong, 2 Selden, 436; City of Buffalo v. Holloway, 3 Selden, 496; Bachy v. Bowland, 16; Eng. L. and Eq. R. 442; Filis v. Sheffield Gas Co. 22; L. and Eq. R. 198, and several other eases.
   By the Court.

Oakley, Ch. J.

It was admitted by tbe learned counsel for tbe plaintiffs, tbat if we are to be governed by tbe doctrine of tbe Court of Appeals in Blake v. Ferris, tbe defendant will be entitled to our judgment, and we are, therefore, to inquire whether there is any sound distinction tbat can justify us in exempting this ease from tbe controlling authority of tbat decision. We are satisfied, upon full consideration, tbat there is no such distinction, and I shall proceed to state briefly tbe reasons tbat bave led us to this conclusion.

Tbe general rule tbat Blake v. Ferris establishes, is that a pér-son for whom work of any descriptioii is in a course of performance, under a contract, is not answerable for any’injuries tbat may result to third persons from tbe misconduct or negligence of tbe workmen or servants of tbe contractor; and tbe ground of tbe decision is, tbat as tbe persons so employed are not subject, in tbe discharge of their duties, to tbe orders, direction, or control of tbe person for whom tbe work is contracted to be done, tbe maxim of “ respondeat superior,” upon wbicb alone bis liability could be founded, has no application. It is not denied tbat tbe terms of tbe rule embrace tbe ease before us; it is not denied tbat tbe injuries of which tbe plaintiffs complain were occasioned solely by the negligence of persons in the' employ of the contractors; nor is it denied, that between these persons and the defendant there was no such relation of principal- and agent, or master and servant; as could render him liable for the damages, which the plaintiffs seek to recover. It is upon another and entirely distinct ground that the defendant is sought to be charged. • He was the owner of the building which was in the course of construction, and to which the leader and spout were attached through which the waters flowed that flooded the premises and damaged the property of the plaintiffs, and it is contended, that the single fact, that at the time of the accident he was such owner, is alone sufficient to render him liable for the consequences that followed.

We do not think so. The argument for the plaintiffs rests entirely on the broad proposition, that the' owner of fixed real property is answerable, in all eases, for any'injuries that may result to others from its actual state or condition, no matter to what cause ⅛ state or condition may be owing, nor how temporary it may be in its character or duration; and to the proposition thus stated we cannot assent. It may possibly be true, when the owners are in the actual occupation of the property, but it is certainly not true when the property is in the occupation of a tenant, unless it is shown that its state and condition were known to the owner, and that it was in his power to have prevented the injuries that followed. To hold that the owner is hable, when it appears that the injury, for which damages are claimed, was' occasioned' solely by the misconduct or negligence of the tenant himself, without any knowledge, interference, or means of prevention on the part of the owner, it seems to us, would be a perversion of law and justice, and we think it may be affirmed with confidence, that no case is to be found in which the liability of an owner has been carried to this extent. In our opinion, the liability of the owner depends, in all cases, upon a just application of the maxim, “Sic utere tuo, ut alienum non Icedas.” It therefore exists only when he is justly chargeable with á violation or neglect of some duty, which his relation to the property as owner may be properly held to impose; and in the application of this rule we can see no ground for making a distinction between the liability of the owner for the misconduct or negligence of a contractor, and his liability for the misconduct or negligence of a tenant. In both, cases, in order to render Mm liable, the fact that the misconduct producing the injury for wMeh damages are claimed, was known to Mm, and that it was his duty, and in his power to have prevented its consequences, are necessary to be proved. The employment of the contractor is, in its nature, just as independent of the will of the owner, as the ordinary conduct of the tenant; and when the contract is for the construction of an entire building, the ground, upon which the building is to be erected, is just as truly in the occupation of the contractor, as the ground covered by a lease is m the occupation of the tenant. The possession, as necessary to the prosecution of the work to which the contract relates, is just as certainly vested in the contractor, by force of his contract, as the possession of demised premises is vested in the tenant, by force of his lease. It is said, that the owner, whenever he may please, in the mere exercise of Ms own will, may remove the contractor from the possession, but if this power belongs to Mm as owner — which we neither affirm nor deny — it is not a power which he is bound to exercise, or can be justified in exercising, unless the known misconduct of the contractor has been such as to render its exercise a positive duty; and until it is exercised, the possession of the contractor is the possession of the owner, only in the same sense in which the possession of a tenant is, in judgment of law, that of his landlord. In each case, the possession is derived from the owner, and is held in subjection to his paramount title, but in both, the possession, so long as it continues, is exclusive. In our opinion, therefore, there is no reason whatever for holding that the responsibility of the owner for injuries to third persons during the continuance of this possession is greater in the one case than in the other. We think that in reason and in law the cases, in this respect, are not distinguishable.

But although we cannot hesitate to reject the proposition on wMch the counsel for the plaintiffs was obliged to rest his case, we cannot say that it is wholly destitute of authority. It must be admitted that it is fully sustained by the decision of the Supreme Court of Massachusetts, in the case of Lowell v. Boston and Lowell Railroad Company, (23 Picker. 24,) and by that of the Court of Common Pleas in England, in the much earlier case of Bush v. Steinman, (1 Bos. & Pull. 404;) but we hold it to be quite certain that neither of these cases can now be regarded as law. The opinion of the conrt in Lowell v. Boston Railroad Company, is expressed in terms that render it irreconcilable with all the leading cases bearing on the question, both in England and in this state, and the decision is in onr opinion inconsistent with the subsequent decision of the same court in Earle v. Hall, (2 Metc. 353,) and, although not in terms, yet in effect, was overruled by the judgment which Chief Justice Shaw, as the organ .of the court, then delivered. In England, the case of Bush v. Steinman was denied to be law, and was expressly overruled by the Court of Exchequer, in Reddie v. London and North Western Railroad, (4 Excheq. 244,) and, as we understand the opinion of Mr. Justice Mullett was meant to be overruled by the Court of Appeals in Blake v. Ferris. It may be true, that if we examine with attention the facts that were in evidence in Blake v. Ferris, we shall be satisfied that the question whether -the defendants were Hable as owners of the real property to which the contract related, did not properly arise; but it is nevertheless true, that the question was, in fact, raised, and was entertained by the court and discussed by the counsel, and, if the opinion of Mr. Justice Mullett is to be considered throughout, as also the opinion of his brethren, was decided by the court, as the same question is now decided by ourselves — namely, that the mere fact, that a contract relates to real property, makes no difference in the liability of the owner for the misconduct or negligence of the contractor or his servants. He is not liable for an' injury for which a compensation in damages is sought, unless it is proved that the injury was owing to some violation or neglect of his own personal duties. In stating this to be the law, we are not to be understood as saying that there are no cases in which an action for damages may be maintained against the owner for an injury directly resulting from an act of the contractor or his servants. When the act cannot be imputed to the negfigence or misconduct of the contractor, but is done in execution of the contract and in accordance with its terms, it is against the owner, as the person primarily, if not solely liable, that the action is properly brought, and it was upon this ground that the Court of Queen’s Bench in Ellis v. Sheffield Gas Company, (22 L. and Eq. R. 198,) and this court, in Lacour v. Mayor of New York, (3 Duer, 405,) held that the plaintiffs were entitled to recover. So, where the act or neglect of a tenant or contractor creates a nuisance, with a knowledge of the existence of which the owner is justly chargeable, it may be admitted, that in the exercise of his powers as owner, he is bound to prevent the continuance of the nuisance, and that his neglect in the performance of this duty, will render him liable to third persons for the damages, which they are shown to have sustained.

As it is not, and cannot be pretended that the ease before us falls within either of these exceptions, it follows, from the observations that have been made, that the verdict for the plaintiffs, as contrary to law, must be set aside, and that the defendant is entitled to our judgment, dismissing the complaint with costs.

Judgment accordingly.


author: Duer, J.

text:
    Mark J. King and others v. John Orser, Sheriff, &c., and John Wilson.
    Although before the Code the sheriff could uot be made liable, as a trespasser, for taking the goods described in a -writ of replevin, from the possession of a third person, claiming to be the owner, yet in the action which the Code has substituted for that of replevin, he can only take the property described in the affidavit of the plaintiff, when it is found in the possession of the defendant himself, or of his agent.
    The provisions of § 216 of the Code, requiring, that when the property taken by the sheriff is claimed by any other person than the defendant or his agent, such person shall make and serve upon the sheriff an affidavit, showing his title to the property, and his right to the possession, are only applicable when the property is taken by the sheriff in the proper discharge of his duty, from the possession of the defendant or of his agent.
    The sheriff, although not personally present when goods are wrongfully taken by a deputy, is yet liable as a trespasser for the acts of the deputy, and may therefore be joined with the deputy as a defendant in an action for the recovery of damages from the wrongful taking.
    The defendants in such an action, when the wrongful taking is proved, are not allowed to set up, as a defence, a paramount title in a stranger.
    The rule of damages is the market value of the property when wrongfully taken.
    Judgment for plaintiffs, with costs.
    (Before Oakley, Ch. J., Doer and Campbell, J.J.)
    March 12; - 31, 1855.

      The action was brought to recover damages for tbe wrongful and forcible taking by tbe defendants of certain goods and chattels particularly described in tbe complaint, and judgment was demanded for $3,000, witb interest from tbe 19th of March, 1853, tbe day on which the wrongful taking was laid.
    The answers of the defendants alleged that the defendant Orser, was sheriff of the city and county of New York, and the defendant Wilson, one of his deputies, and that the latter, as such deputy, had rightfully taken possession of the goods mentioned in the complaint by force of the affidavit made by the plaintiff in an action brought by one Isadore Bernhard v. A. Schles-singer and M. Rothschild, to recover the possession of personal property; and also alleged that Schlessinger and Rothschild had reclaimed the possession of the property in the mode prescribed in the Code, and that the sheriff (Orser) had given them an order for the redelivery of all the property, including the goods alleged to belong to the plaintiffs, but did not aver that they had taken possession of these goods under the order.
    The answers also averred that the plaintiffs, not having served upon the defendants, or either of them, any affidavit, setting forth their claim and the grounds thereof, could not maintain their action against the defendants, jointly or severally, and that in no event could they maintain their action against the defendants jointly, for the matters alleged in the complaint.
    Upon these pleadings, the cause was tried before Slosson, J., and a jury, on the 19th April, 1854.
    It was proved on the part of the plaintiffs, that on the 14th of March, 1853, Schlessinger and Rothschild had sold and delivered to them the goods mentioned in the complaint, and that, at the same time, Schlessinger and Rothschild bought other goods from the plaintiffs, and that the price of these being deducted, the plaintiffs gave their note for the balance, which was duly paid at its maturity. It was also proved, that on the 16th or 17th of ■ March, the defendant Wilson, had taken away the goods thus sold for the plaintiffs from their store, and it was admitted on the part of the plaintiffs, that Wilson, in so doing, had acted as a deputy sheriff, under the claim and delivery papers set forth in the answers.
    The plaintiffs then rested, and the counsel for the defendants, upon tbe grounds subsequently relied on, upon tbe argument at General Term, moved for a dismissal of tbe complaint. Tbe motion was denied, and tbe counsel exeepted to tbe decision.
    Tbe defendants then offered to prove: -1. Tbat at tbe time of bringing this action, and at tbe time of tbe taking of tbe goods, for wbicb it was brought, Bernbard was tbe owner of tbe property, and entitled- to its possession as against tbe plaintiffs. 2. Tbat tbe defendant, Orser, under tbe papers in tbe action of Bernbard against Scblessinger and Rotbscbild, and by tbe direction of Bernhard, authorized bis deputy Wilson to take tbe property from tbe premises of tbe plaintiffs.
    This evidence was offered an behalf of each defendant, first in bar of tbe action, and next in mitigation of damages.
    Tbe court, upon tbe objection of tbe counsel for tbe plaintiffs, excluded tbe evidence; and tbe counsel for tbe defendants, on behalf of each of them, excepted to tbe decision.
    Evidence was then given on both sides, as to tbe value of tbe goods, and when tbe testimony was closed, tbe counsel for tbe defendants renewed tbe motion for tbe dismissal of tbe complaint, wbicb was again denied.
    Has honor, tbe Judge, charged tbe jury, and ruled tbat tbe facts proved and offered to be proven by tbe defendants, did not constitute any defence to tbe action on tbe part of either of tbe defendants; to wbicb ruling and charge tbe defendants, by their counsel,' then and there severally excepted. Tbe court further ruled and charged tbat tbe proceedings in tbe suit of Bernhard v. .Schlessinger & Rothschild\ to obtain tbe immediate delivery of tbe property, did not authorize tbe defendant Wilson, to enter tbe store of tbe plaintiffs, nor to take tbe goods therefrom. To wbicb ruling and charge, tbe defendants then and there severally duly excepted. Tbat tbe only question for tbe jury to determine, was tbe value of tbe silks at tbe time they were taken by Wilson, on tbe 16th of March, 1854. To wbicb portion of tbe charge, tbe defendants by their counsel severally duly excepted. Tbat tbe rule of damages was not what it would cost to supply another article wbicb would answer tbe same purpose, but what this kind of goods could have been bought for in tbe market at tbe time they were taken.
    The jury retired, and, returning into court, rendered a verdict for tbe plaintiffs for $888.59 damages, being tbe value of tbe goods as found by tbe jury, and interest since tbey were taken from tbe plaintiffs.
    It was thereupon ordered by tbe court, tbat a case be made, and tbat tbe plaintiff apply at tbe General Term, in tbe first instance for judgment tbereon, with leave to tbe court to direct a nonsuit, or dismissal of tbe complaint, or judgment for tbe defendants.

      J. Sutherland and R L. Rancher, for tbe plaintiffs,
    now moved for judgment on tbe verdict, and, in support of tbe motion argued substantially as-follows:
    Tbe suit was properly brought, both against tbe sheriff and bis deputy. The latter was tbe actual party who took tbe goods from the plaintiffs, and tbe former directed him to do so, and adopts and persists in tbe alleged lawfulness of tbe trespass. (Waterbury v. West&velt, et at, Courtof Appeals.)
    Tbe justification set up, and offered to be proved by tbe defendants, was insufficient, as a defence, and tbey were trespassers in taking tbe goods from tbe plaintiffs; inasmuch as tbe plaintiffs in this action, (in whose possession tbe goods were, and who were tbe owners thereof,) were not parties in tbe “ claim and delivery” action. Tbe papers in tbat action only authorized tbe defendants to take tbe goods from tbe possession of whoever were named as defendants in those papers, or their agents. (See Code, § 209.)
    Had tbe plaintiffs in this action been made defendants in tbe action brought by Bernhard, tbey could have defended successfully ; inasmuch as tbey bad given their note and other goods, in payment for tbe eighty-six pieces of silks in question. {French v. Root, 13 Wend. 572; Ash v. Putnam, 1 Hill, 305.)
    Tbe pretence of tbe defendants, tbat tbe plaintiffs must try their title in tbe present suit with them, is absurd; for tbe result will not bind Bernhard. Tbe Code evidently contemplates, tbat all persons who are in possession of goods claimed by another, shall be made parties to any “ claim and delivery” proceedings; and for tbe very purpose of allowing them to litigate their title.
    There was no error in any ruling or decision of tbe learned Judge, on tbe trial, nor in bis charge to tbe jury; and tbe plain-' tiffs should have judgment on tbe verdict with costs.

      A. J, Vanderpool, for tbe defendants.
    We insist that tbe mo- ■ tion for a nonsuit, ought to baye been granted:—
    I. Tbe defendants were protected in taking tbe goods from tbe plaintiffs, under tbe claim and delivery papers, in tbe suit of Scblessinger and Rotbscbild. Tbe process was against specific property; it was a proceeding in rem, and was regular upon its face, and trespass cannot be maintained against tbe officer acting under it.
    Tbe action for tbe claim and delivery of personal, property under tbe Code, is a substitute, and is governed by tbe same rules as tbe former action of replevin. No action could be maintained against tbe officer, acting under a writ of replevin, except when tbe claimant complied witb certain statutory regulations, enacted for tbe protection of tbe officer. Tbe right of action in favor of a third person, who claimed tbe property taken under tbe writ, was limited, so that it could only be.maintained against tbe plaintiff in tbe writ, except where tbe officer was indemnified, or violated tbe provisions of tbe statute. (Shipman v. Ciarle, 4 Denio, 446.)
    Under tbe 216th section of tbe Code, no claim to tbe property by any other person than tbe defendant or bis agent, is valid against tbe sheriff, unless made as therein provided; and tbe plaintiffs in tbe suit, bad not, in any respect, complied witb tbe . provisions of that section.
    TT. The Justice erred in refusing to allow tbe defendants to prove that Bernhard was tbe owner of, and entitled to tbe possession of tbe property, as against tbe plaintiffs.
    Tbe defendant, acting under tbe directions of tbe owner, as well as under bis process, was authorized to take tbe property whenever be could find it.
    If tbe evidence did not constitute a bar, it was still competent in mitigation of damages.
    TTT. The action cannot be maintained against tbe defendant Orser. He was not present at, and did not personally participate in tbe alleged trespass, and cannot be made bable under tbe facts as proven in this case; and if a trespasser, be was only such by relation, and cannot be joined in an action witb an actual trespasser.

      The Justice erred in his charge to the jury, upon the question of damages. ■ ■ .
   By ttu; Court.

Duer, J.

It may be conceded, as the Su-

preme Court, in Shipman v. Clark, seems to hare decided, that as the law stood before the Code, the sheriff could not be made liable as a trespasser, for taking the goods particularly described in a writ of replevin, from the possession of a third person claiming to be the owner, but when we look at the form of the writ as given in the Revised Statutes, (2 R. S. p. 523, § 6. Yide also, § 524,) the reason for exempting the sheriff from this liability is at once apparent. The writ, not indeed by express words, but by a necessary implication, authorized the sheriff to take the goods, wherever they might be found within his county; since it was only when they could not be found within the county, that he was directed to arrest the defendant. But by an alteration.of the law, which seems eminently proper, the powers of the sheriff, in the action for the delivery of personal- property, which has been substituted for replevin, are far more limited. He can only take the property described in the affidavit of the plaintiff, when it is found in the possession of the defendant or his agent. (Code, § 209.) Hence, if the property is in the possession of any other person than the defendant, the sheriff in taking it, acts at his peril, and can only free himself from liability as a trespasser, by showing that this person was in reality no. more than an agent of the defendant, and in this capacity alone, held the possession. If he fail in this proof, we cannot doubt that he is just as liable for the value of the property, to the person from whose possession it is wrongfully taken, as he is to the true owner of goods, which are levied on and sold, under an execution against another. In both cases, he can only defend himself by proving that the property belonged to the defendant in the action. It is not denied, that the goods now in question, when taken by the defendants, were in the actual possession of the plaintiffs, nor is it pretended, that they held the possession as the agents of Schlessinger and Rothschild. On the contrary, it is clearly proved, that they claimed, and for aught that appears, justly claimed to be themselves the owners. It is, therefore, certain, that the defendants in taking the goods from the possession of the plaintiffs, exceeded- their authority and violated tbeir duty, and must be liable for tbe damages found by tbe jury, unless we are compelled to say, that tbe complaint ought to bave been dismissed on tbe trial, or tbat tbe evidence tben offered on tbeir bebalf, was improperly excluded.

Tbe Code provides tbat wben tbe property taken by tbe sheriff, is claimed by any other person than tbe defendant or bis agent, such person shall make, and serve upon tbe sheriff, an affidavit, showing bis title to tbe property, and bis right to its possession, and'tbat no such- claim shall' be valid against tbe sheriff, unless it is made in tbe mode prescribed. (Code, § 216.) And it has been insisted, tbat as no such claim and affidavit were made by tbe plaintiffs, they cannot be entitled to recover; but we are satisfied tbat tbe objection is groundless, and tbat tbe provisions tbat bave been quoted, are only appbcable wben tbe property has been taken by tbe sheriff, in tbe proper discharge of bis duty; tbat is, from tbe possession of tbe defendant or bis agent. They were never meant to protect him where bis original taking of tbe property was a wrongful act, for tbe consequences of which, be was immediately liable. It appears from other provisions.in tbe section, tbat the sheriff is not bound to deliver tbe property immediately, and as a matter of course, to a claimant who has made and served tbe required affidavit. On tbe contrary, be has a right to retain it a reasonable time, for tbe purpose of ascertaining whether tbe plaintiff in tbe action will consent to indemnify him, and if tbe indemnity is given which be has a right to demand, it is to tbe plaintiff, and not to tbe claimant, tbat tbe property must be delivered. We cannot, however, believe tbat it was tbe intention of tbe framers of tbe Code, or of tbe Legislature, tbat tbe sheriff should retain, for any period or purpose, tbe possession of property which be bad no authority, and is in effect, forbidden to take, and still less, tbat be should deliver tbe property so taken to tbe plaintiff in tbe action. We think tbat to give this construction to section 216, would be to render it plainly inconsistent with tbat limitation of tbe sheriff's authority, which tbe preceding section, 209, has defined and imposed.

Tbe objections tbat tbe defendant Orser, not having been present in- person, wben tbe goods in question were unlawfully taken, by bis deputy, ⅛ not bable as a trespasser at all, or, if bable, cannot be joined in an action witb bis deputy, are tbe same tbat were fully considered and distinctly overruled by bis court, in tbe case of Waterbury v. Westervelt, a case not reported, but in wbicb our judgment, we know, bas been affirmed in tbe Court of Appeals. When tbat case was before us, all tbe authorities bearing on tbe question were carefully examined, and especially tbe judgment of tbe Supreme Court of Massachusetts, in Campbell v. Phelps, (1 Pick. R. 62,) tbe case on wbicb tbe counsel- for tbe sheriff mainly relied. We thought, however, and still think, tbat tbe opinion delivered in tbat case, by Mr. Justice Wilde, was more satisfactory in its reasoning, and better sustained by authority and by analogy, than tbat of tbe majority of bis brethren, from whom be dissented; and such must.also have been tbe opinion of tbe Court of Appeals, in affirming our judgment. At any rate, tbe decision of the Court of Appeals, bas settled tbe law in favor of tbe right of tbe plaintiffs to maintain their action, in its present form.

• Tbe evidence tbat was offered to prove tbat tbe property of tbe goods was in Bernhard, and not in tbe plaintiffs, was very properly excluded, not only because no such defence is set up in tbe answer, but for tbe conclusive reason tbat tbe defence of a paramount title in a stranger, is one tbat trespassers can never be allowed to make. (11 John. 132; 13 John. 276; 1 Wend. 466; 7 Term R. 354; 8 id. 403.) Tbe defendants were not acting as tbe private agents of Bernhard, but in their official capacity, and it was upon their authority so to act, tbat tbe question of their liability solely depended. Bernhard is in no sense a party to this „ action, and it is only in an action to wbicb be is a party; tbat tbe question, whether tbe goods belonged to him or to tbe plaintiffs, can be properly determined. As tbe goods, when taken, were in tbe possession of tbe plaintiffs, as owners, tbe defendants were not at liberty to contest their title, otherwise than by showing (that tbe property belonged in fact to Schlessinger and Rothschild, and tbat tbe plaintiffs held tbe possession merely as their agents; ,-and no such evidence was given, or attempted to be given.

Tbe direction of tbe Judge as to tbe rule of damages, was entirely correct. Tbe plaintiffs were entitled to recover tbe market value of tbe goods, and were not limited, to tbe price which they bad paid for them.

As we are of opinion tbat none of tbe exceptions tbat were taken on tbe trial can be sustained, tbe plaintiffs are entitled to judgment upon tbe verdict, witb costs.

Judgment accordingly.


author: Boswoeth, J.

text:
    Congreve v. Morgan.
    An infant child of one of several tenants of a dwelling-house and premises who hired, each a distinct part thereof, was injured by the breaking of a stone covering a vault attached to the house, while he was standing upon the stone. It did not appear by the pleadings, whether this stone was within a public street, or wholly on the premises of the defendants, the owners and lessors. Held, that a cause of action is not established merely by proof, that the defendants were owners and landlords of the premises, and that while the plaintiff stood on this stone, it broke, and he fell into the vault beneath, and was injured. It is necessary to prove some fault or negligence of the defendants, which caused the casualty. If the defendants erected the building, or had it done by a contract calling for materials, or workmanship, which would leave the covering of the vault insecure, and if they knew this, or if by such inquiries as a discreet person would make under the circumstances, they would have ascertained this, they ' would be guilty of negligence in so building, or in making such a contract. In such a case, a person injured, by such a covering, if free from negligence himself, could recover.
    If it is sought to make the defendants liable on other grounds than those of negligence, in not constructing the cover of the vault properly, or in not keeping it in a proper condition; such as that the area is within a public street, or that a duty imposed by some municipal ordinance has been violated, those grounds should be stated in the complaint, so that issue can be taken upon them, and the defendants may come prepared to try those issues.
    (Before Dbek, Campbell and Boswokth, J. J.)
    April Term, 1855.
    This action came before tbe court on exceptions taken at tbe trial, and on questions of law arising on a special verdict, wbicb exceptions and questions were, at tbe trial, directed to be beard in tbe first instance, at tbe General Term.
    Tbe complaint states, tbat tbe plaintiff is an infant under tbe age of three years. Tbat tbe defendants in tbis action now are, and heretofore on tbe day of tbe occurring of tbe cause of action hereinafter set forth, were tbe landlords and owners in fee of a certain lot of land and dwelling-house, and appurtenances thereof, situated on tbe north-east corner of Sixth avenue and thirty-first street, in tbe city of New" York. That on tbe seyentb of July last past, (1853,) be, said plaintiff, was standing npon a certain flagstone, covering or outside pavement, witbin a foot or two feet of tbe wall of tbe main building of said premises, when, by reason of tbe insecurity of tbe supports of tbe said flagstone, covering or outside pavement, by reason of tbe insufficiency, rottenness, and inferiority of tbe materials of wbicb tbe said flagstone, covering or outside pavement was composed, for tbe want of tbe proper underneath barrier supports or fastenings of tbe same, and tbe utter carelessness and negligence of tbe defendants in permitting tbe flagstone, covering or outside pavement, to be and remain so insecure, for want of proper supports of so rotten, inferior, and insufficient material composed, be, tbe said plaintiff, on tbe said day herein last mentioned, was precipitated, thrown, cast, and caused to fall into an aperture, vault, bole, excavation or opening, beneath tbe said flagstone, covering or outside pavement, in consequence of wbicb precipitation or falling into tbe said opening, bole' or excavation, tbe right foot of tbe said plaintiff was crushed to pieces: in further consequence of which tbe said right foot of tbe plaintiff bad to be and was amputated, together with a portion of tbe lower part of bis right leg, between tbe knee and tbe ankle of tbe said limb, whereby tbe said plaintiff was enforced to endure great agony, suffering, and bodily torture, whereby be is crippled for tbe period of bis natural life, whereby tbe prospect qf bis maintenance and support for life, by any exertions of himself, is diminished and injured, and whereby bis earthly happiness, comforts, and existence, are materially damaged, injured, and prejudiced. Wherefore, be, said plaintiff, claims damages against tbe said defendants; in tbe sum of twenty-five thousand dollars, besides tbe costs of this action.
    (Tbe answer-admitted, that tbe defendants were tbe owners in fee, and landlords of tbe dwelling-house and premises described in .the complaint, and put in issue tbe other allegations of tbe complaint. Tbe answer set up various matters-of defence, as follows:
    - -And these defendants for a further and separate defence allege and aver, that tbe said building and premises, were rented and leased by them to James M. Congreve, tbe father of tbe plaintiff, and others, for tbe term of one year, from tbe first day of May, 1858, to tbe first day of May, 1854, and that tbe said James M. Congreve with others, entered into tbe possession thereof as tenants under such letting as aforesaid, and were in possession thereof at tbe time of tbe alleged injury to tbe plaintiff, and still remain in tbe possession thereof, and that tbe defendants were not, nor was either of them in tbe possession of tbe said premises at tbe time when tbe said alleged injury occurred. And these defendants for a farther and separate defence, allege and aver, that tbe said braiding and premises were rented and leased by them to James M. Congreve, tbe father of tbe plaintiff, with others, for tbe term of one year, from tbe first day of May, 1858, to tbe first day of May following, and that said James M. Congreve, with others, entered into tbe possession thereof as tenants under such letting as aforesaid, and were in possession thereof, at tbe time of tbe alleged injury to tbe plaintiff, and still remain in tbe possession thereof. These defendants further allege, that tbe said side-walk flag, or covering appurtenant to tbe said premises, at tbe time of tbe aforesaid demise, and of tbe entry of tbe said tenants thereupon, to wit: on tbe first day of May, 1858, was well and properly placed, and set with all sufficient and necessary supports, and securely fastened, and was of superior materials, and proper for tbe purposes for which it was intended to be used, and with reasonable wear and tear would have so remained until tbe first day of May, 1854. These defendants for a further and separate defence, upon information and belief, aver, that the alleged injury to tbe plaintiff, was caused by tbe negligence, carelessness, and wrongful acts of tbe lessees in possession of tbe said premises, at tbe time when tbe said alleged injury occurred. Wherefore these defendants pray that said complaint may be dismissed, with costs.
    Evidence was given tending to show, that tbe stone broke while tbe father and son were standing upon it, that both were injured, and tbe plaintiff very severely.
    Witnesses who were practical mechanics, were examined on behalf of tbe plaintiff, and expressed tbe opinion that this stone was an unsafe and unsuitable on?¡ for tbe use to which it was applied, and as many witnesses on behalf of tbe defendants, apparently equally competent, expressed a contrary opinion.
    Tbe evidence established, that tbe defendants bought tbe premises, after tbe building bad been erected, and before it was completed. After their purchase, and on tbe 15th of January, 1852, tbey made a contract witb competent and skilful mechanics, to complete the building, under tbe supervision of a competent architect, in a substantial manner, and of good materials in all particulars. The clause in the specifications, relating to the stone for covering the areas, was a subject of comment and criticism, and read thus:
    “ The curb and gutter to be repaired, and reset if found necessary, both on 31st street and Sixth avenue. The front side-walk of ditto, to be flagged with good, sound, tooled-joint, blue flagstones, worth eleven cents per foot.
    “ The flags to cover front and flank areas, to be three inches thick, for size, see drawings: all the above to have cut openings left for hole trees, and street-washer.”
    The contractors, by a sub-contract with, employed one Houghey, a flagger, to furnish the stone and dp the flagging, and cover the areas. Their contract with the defendants was read to him, and he was to furnish materials, and do the work, as their contract and specifications required.
    . Houghey was examined, and his testimony tended to show, that this area stone was not dressed, axed, or tooled; that he would have liked a stronger stone than this, for the place where it was laid; that he thought there ought to have been a stronger one, but he could not afford a better one for the price he was to get. There was no evidence tending to show, that the defendants or their architect, supposed the stone to be insufficient, or defective.
    The evidence did not show whether this area was within defendant’s lot, or within the line of the street. The side-walk had no fence or railing between the area and the curb-stone. The stone, alleged to be defective, was blue flagstone, about three inches thick, but not being dressed, was not of a uniform thickness. The premises were rented to different persons, from May, 1853, to May 1854; the plaintiff’s father being a lessee of a portion of them, and occupying, by himself and family, the portion so hired by him.
    When the testimony was concluded, • the defendants’ counsel moved that the complaint be dismissed, on the same grounds on which he had moved for a nonsuit, when the nlaintiff rested,

      I. This-action is brought by the plaintiff, an infant living with his father, who is in possession of the premises, corner of 31st street and Sixth avenue, in this city, as tenant of the defendants. He had the care and charge of the plaintiff. If the father has no right of action, the plaintiff has none. Their obligations and duties, as far as the defendants are concerned, are the same. The negligence of the father is the negligence of the plaintiff.
    H. There is no evidence in the case showing that the defendants covenanted, or agreed to repair or keep in repair, the premises in question; and they are not liable to third persons for injuries resulting from a want of repair of premises in the possession and occupancy of a tenant.
    HE. The tenant, who in this case is shown to be the plaintiff’s father, is bound to repair when there is no agreement or covenant on the part of the landlord to repair, and is liable to third persons for injuries resulting from a want of repair. As between landlord and tenant there is no implied covenant that the former shall repair- but the tenant is bound to keep the premises in repair, in the absence of any contract to the contrary.
    IV. The obligation to repair resting upon the plaintiff’s father, no action can lie by him against the defendants for an injury to himself, arising from his own neglect to do proper repairs.
    V. Even if there was a defective construction of premises in the occupancy of the plaintiff’s father, the defendants are not liable for injuries resulting therefrom, unless they had made an express covenant of warranty. No such warranty is proven or contended for in this case.
    VI. There is no evidence of negligence proven against the defendants, to submit to the jury.
    Also upon the ground, that it being shown, that the defendants contracted with careful and responsible men as builders, for the erection of said house, and if there was any negligence or omission it was that of the builders, and not of the defendants, and upon the doctrine of Blalce v. Ferris, (1 Seld. R. 48,) the defendants are not liable for the injury in question. The court overruled the motion, and the defendants by their counsel excepted.
    The Judge then charged the jury, and, in his charge, instructed them' as to the question of damages. The respective counsel for the parties agreed that the case did not present a claim for exemplary damages against tbe defendants; be instructed them .it was not a case which authorized a recovery of exemplary damages, and that the jury in estimating the same, were to arrive at the best conclusion they could, in estimating the actual damages which the plaintiff sustained, by reason of the injury.
    The Judge submitted to the jury the following questions specifically, to which he required them to write their answer.
    "Was the stone in question, which gave way, a suitable and safe stone, for the use to which it was applied, as used and applied ?
    Did the defendants know or have notice of any facts which should have induced a man of ordinary caution and intelligence to suppose or believe, that this stone was an unsafe and unsuitable stone for the use to jvhich it was applied, as used and applied?
    How much damages has the plaintiff sustained in consequence of the injury which he suffered from the giving way of the stone ?
    The jury having retired, returned into court, and to the first and second specific interrogatories answered “no,” and to the third interrogatory, “ two thousand dollars damages.”
    The Judge thereupon ordered the above finding of the jury to • be entered, subject to the opinion of the court at a General Term, on the questions of law reserved at the trial, and to be heard there in the first instance.
    The questions of law, arising upon the verdict, were heard in the first instance at the General Term.

      H. Morrison, for plaintiff.

      P. Y. Cutler, for defendants.
   By the Couet.

Boswoeth, J.

No facts are stated, as imposing any duty upon the defendants, beyond the allegations that they were landlords, and owners in fee of the lot, dwelling-house and appurtenances. The duty implied by the facts stated, is that expressed by the maxim; “ sieutere tuo ut alienum non Icedas.” In such a case, it is evident, that a cause of action would not be even •prima facie established, by proof that the defendants were landlords and owners in fee of the premises, and that while the plaintiff stood on tbis stone, it gave way, and he fell into an excavation under it, and was injured.

It would be necessary to go further, and prove some fault of the defendants, which produced the casualty. If there were any facts existing, which, under any statutory law, made it the defendants’ duty to maintain a covering over the excavation, which should be safe at all events, neither the facts, nor such a law have been stated in the complaint, or appear to have been established on the trial.

If the defendants’ liability depends upon the question whether their negligence was the cause of the injury complained of, we must hold that it was not, if the finding of the jury embraces all the facts necessary to be known to determine that question. If other facts, beside those specially found, must be known in order to arrive at a just conclusion, then, unfortunately for both parties, the cause must be again tried. If the building was erected, and all the materials furnished and works done, were furnished and done, in conformity with the contract, there was no negligence, under the finding of the jury, unless there was negligence in making such a contract.

We are unable to see that the question secondly submitted, involved in its decision the examination and determination of that question. If it could be seen that it did, and that the finding of the jury to it, determined that there was no negligence in making the contract, we do not perceive any grounds on which the defendants could be made liable on such a state of facts, as the case, in that view of it, would present.

If the defendants made a contract calling for materials, or workmanship, which would leave the covering over the excavation unsafe and insecure, and if they knew these would leave it insecure, or if such inquiries as a discreet person, under the circumstances, would ordinarily make, would have given them notice, or just grounds to believe, it would be unsafe and insecure, they would be guilty of negligence in making such a contract. In such a case, if the injury was caused by such an unsafe and insecure structure, without any negligence on the part of the plaintiff, contributing to produce the casualty that caused the injury, the defendants in our judgment would be liable.

In the case of The Rochester White Lead Company v. The City of Rochester, (3d Coms. 463,) tbe defendants were beld liable for tbe damages caused by a culvert tbey bad constructed, on tbe ground of negbgence in constructing it. It bad not sufficient capacity to discharge tbe water it was designed to draw off, and was unskilfully constructed, and these defects were found to have been tbe result of employing and following tbe advice of an incompetent and non-professional engineer.

Speaking of tbe test of tbe defendants’ liability, Taylor, J., who debvered the opinion of tbe court, said, “ In the construction of a work like this, tbey were bound to exercise that care and prudence which a discreet and cautious individual would or ought to use, if tbe whole loss or risk were to be bis alone.”

Such a rule makes tbe fact of liability depend upon tbe fact of negligence.

In the case of The Mayor, &c., of Lyme Regis v. Hentley, (1 Bing. N. C. 222,) Park, J., in delivering the opinion of tbe Judges, after stating tbe case and tbe pleadings, observes, that “ in order to make this declaration good, it must appear, First, That tbe corporation are under a legal obligation to repair tbe place in question. Secondly, That such obligation is matter of so general a public concern, that an indictment would lie against tbe corporation for non-repair. Thirdly, That tbe place in question was out of repair; and, Lastly, that tbe plaintiff has sustained some peculiar damage, beyond tbe rest of tbe king’s subjects, by such want of repair.”

In tbe case of The Mayor, &c., of New York v. Furze, tbe corporation was beld bable for tbe consequences of not repairing sewers, which it was their duty to repair. But tbe corporation bad notice that repairing was necessary, and its agents, who were directed to see to tbe repairs, wholly neglected to make them. (3d Hill, 612.) Tbe question of actual negligence was submitted to tbe jury as one of fact.

Vaughan v. Menlore, (3d Bing. N. C. 468,) was a case of actual negligence. Tbe Judges agreed, that “ tbe care taken by a prudent man, has always been tbe rule laid down; and as to tbe supposed difficulty of applying it, a jury has always been able to say, whether, taking that as their guide, there has been negligence on tbe occasion in question.”

Livingston v. Adams, (8 Cowen, 175,) seems to declare tbe rule, tbat where one builds a dam upon a proper model, and the worK is well and substantially done, be is not bable to an action, though it break away, in consequence of which his neighbor’s dam and mill, below, are destroyed. That negligence must be shown in order to make him bable.

If a plaintiff claims to recover damages against a defendant, incurred merely by reason of an insufficient structure erected by the latter, he must allege, and, if the allegations are controverted, must prove facts which show that the duty has been imposed upon the defendant, of so erecting and maintaining it, that no injury shall result, either from original defects, or from its being out of repair. Unless enough is alleged and proved to create a duty to be performed, at all events, and at the peril of the party, so as to make him practicaby an insurer of the sufficiency of the original erection, and of its continuing safety, then it is impossible to maintain an action, except upon facts estabhshing an injury, resulting from the negligence of the defendants, without any concurring negbgence on the part of the plaintiff.

Many of the general principles applicable to such a case, are fully discussed and clearly stated, in The Mayor, &c., of Albany v. Cunliff, (2 Coms. 165.)

The counsel for the plaintiff on the argument before us, assumed, that this stone was within the boundary lines of the Sixth avenue, and was not on the plaintiff’s own lot.

If the fact of its being wholly or in part within the pubbc street, is deemed important, and if it is really out of the line of the defendants’ lot, and in the avenue, and if there are any municipal ordinances, that create any duty to be performed by the defendants, by reason of those facts, different from that arising on the facts stated in the complaint, the plaintiff, to avail himself of them, must state those facts and ordinances in his complaint, and if they are put in issue, must prove them.

We do not feel justified from any thing appearing in the case before us, in assuming that this flagstone was a part of the pubbc street, or side-walk, and was wholly, or in part, without the limits of the defendants’ lot.

Dygert v. Schenck, (23 Wend. 446,) only decides, that where a man who owns a farm, through which a pubbc highway runs, digs a ditch across the road, and constructs a bridge over the ditch, he must keep- it perfectly safe. If he does not, and if a person is injured by reason of its getting out of repair, the party-erecting the bridge is liable.- If he-interfered-with the public highway, he should make and keep the road as good-as it was before he dug his ditch. That is a rule sufficiently favorable for the protection of the public, assuming, the road to have been entirely safe-when,the defendant interfered with it.

In this .case, the whole gravamen of the complaint is the negligence of the defendants. , ;

■ No duty is alleged except that which arises from their being the landlords and owners, in fee, of the property described in the complaint.

The only question submitted to the jury, relating to the fact .of the negligence of the defendants, has been found in their favor. The plaintiff cannot have a judgment on such a verdict.

We think, on the case as now presented, the question might have, been properly submitted, whether they were guilty of negligence in -making the contract, under which the building and premises were completed. If there are facts which warrant the position, and the plaintiff deems it important to insist that the defendants were subject to any duty which the complaint, as now framed, does not disclose, he should take the necessary steps to so amend the complaint, as to present all the material facts out of which such duty arises, so that the defendants may take issue-on them, and be prepared to controvert them, on another trial.

The verdict must be set -aside, and a new trial ordered, with costs to abide the event.


text:
    Austin B. Trowbridge v. Mathieu Didier.
    ' A defendant has a right to consider the complaint which is served upon-him or his attorney, as that which alone he is required to answer,.and it is upon the issues raised by his answer to this complaint that the cause must be tried.
    The complaint described the promissory note, upon which the action was founded, as payable “ three months after date,” that produced on the trial, although corresponding in all other particulars with that set forth in the complaint, was payable four months after date.

      Held, that although the variance might formerly have been regarded as fatal, yet, - under the provisions of the Code, it was plainly immaterial, and was therefore properly disregarded by the Judge upon the trial.
    Judgment for the plaintiff affirmed, with costs.
    (Before Duer, Campbell and Boswokth, J.J.)
    April Term, 1855.
    Appeal by tbe defendant from a judgment in fayor of tbe plaintiff.
    Tbe action was brought by tbe plaintiff, as endorsee of a promissory note, bearing date tbe 8tb day of February, 1854, wbicb tbe complainant averred was made by tbe defendant, and whereby be promised, for value received, to pay tbe sum of $100 to tbe order of one Henry Fiorelli. In tbe complaint filed, tbe note was described as payable four months after date, but in tbe copy served on tbe attorneys of tbe defendant, it was stated to be payable three months after date. In all other respects, tbe complaint served was an exact copy of that on file, and, in each, judgment was demanded for tbe amount of tbe note, with interest from tbe 11th of June, 1854.
    Tbe defendant, in bis answer, denied tbe mating of tbe note described in tbe complaint, or that any such note was ever endorsed to tbe plaintiff.
    Tbe cause was tried by consent, before tbe Chief Justice without a jury, on tbe 26th of January, 1855. .Upon tbe trial, tbe counsel for tbe plaintiff produced, and offered to prove, and read in evidence, a promissory note, corresponding with that described in tbe complaint filed. Tbe counsel for tbe defendant then produced and read tbe copy of tbe complaint served, and insisted that, as tbe note offered to be proved was not that described therein, tbe evidence ought to be rejected. Tbe objection was overruled, and tbe counsel excepted.
    Tbe making and endorsement of tbe note were then proved; it was read in. evidence, and tbe plaintiff rested.
    Tbe counsel for tbe defendant then moved that tbe complaint should be dismissed, upon the ground that tbe plaintiff bad failed to prove tbe cause of action, set forth in tbe copy of tbe complaint served on tbe defendant.
    Tbe court denied tbe motion, and tbe counsel excepted to tbe decision.

      The jury, under the direction of the court, found a verdict for the amount of the note with interest, subject to the opinion of the court at General Term, upon the exceptions. Judgment was entered upon the verdict, from which the defendant appealed.

      Condicf, for the defendant,
    the appellant, in moving for a reversal of the judgment, and the dismissal of the complaint, insisted that the defendant could only be governed by the copy of the complaint which was served upon him, and was not bound to search the office to ascertain whether the original was on file, and that served a true copy — and said that such was the decision of the Supreme Court in Smith, v. Wells, (6 John R. 286.) He then contended that the variance between the note proved, and that described in the complaint as served, was a failure of proof .under § 171 of the Code, and cited many cases to show that a variance, however small, in setting out a bill or note, has always been deemed material and fatal, and that the'rule has invariably been followed that when a contract is declared on, it must be proved precisely as it is laid.

      J. & JBurrill, for the .plaintiff,
    argued that as the original complaint on file described the note correctly, any clerical variance between that and the copy served, was a mere irregularity, to be taken advantage of only upon motion; and that even had the note been incorrectly described in the original complaint, still the variance would have been rightfully disregarded on the trial, and this not only under the provisions of the Code, but under a provision in the Revised Statutes, which the Code had not repealed. (Code §§ 169, 170, 171; 2 R. S. § 79, p. 406.)
   By the Court.

Duer, J.

We entirely agree with the counsel for the defendant, that a defendant has a right to consider the complaint which is served upon him, or his attorney, as that alone which he is required to answer, and that it is upon the issues raised by his answer to this complaint that the cause is to be tried. It is therefore undoubtedly true that there was a variance between the proof upon the trial, the note read in evidence, and -the allegations in the complaint, and we incline to the opinion, that this variance before the Code, and notwithstanding the pro-' vision in the Bevised Statutes to which we were referred, would have been regarded as fatal; but this is a question which the wise and liberal provisions of the Code have relieved us from the necessity of considering.

By the express words of the Code, no variance between the allegations in a pleading, and the proof, can now be deemed material, unless it is proved to the satisfaction of the court that the adverse party was actually misled in maintaining his action or defence, (§ 169,) upon the merits, or unless the allegation, to which theN proof was directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, in which last case only is the variance to be treated as a failure of the proof necessary to be given to sustain the action or defence (§ 171).

It is not pretended, in the present case, that the defendant was misled, and indeed it would be absurd to suppose that he was so. He knew that the note which he had given was payable four months after its date; and that the substitution of the word “ three” was a clerical mistake, was apparent on the face of the complaint, which demanded interest from the expiration, not of three, but of four months, from the date of the note. It was, therefore, upon a ground purely technical that the Judge was required to dismiss the complaint, and it is certain, that unless the variance amounted to a failure of proof, it would have been a signal error to have complied with the request.

But it is impossible to say that a variance, which left the material allegation in the complaint of the purport of the note, unproved in a singular particular only, and not in its entire scope and meaning, was a failure of proof, unless § 191 can be expunged from the Code, or its manifest intent be wholly disregarded. It may be quite true that as the law formerly stood, a contract specially set forth in a declaration or plea was, in all cases, necessary to be proved upon the trial, in the exact form in which it was laid in the pleading, but this was one of those technical rules, too frequently “ strangling justice in the net of form,” which the Code was designed to abolish, and, in our judgment, has effectually abolished.

In the case of Catlin v. Gunter recently decided in the Court of Appeals, an usurious agreement that was offered to be proved upon tbe trial, differed not in one, but in every particular, from tbat set forth in tbe answer, but as tbe variance, in tbe opinion of tbe court, did not change tbe entire scope and meaning of tbe de-fence, it was held, tbat it ought to have been deemed immaterial, and upon tbat ground, tbe judgment of this court was reversed, and a new trial ordered. •

Tbat tbe far slighter variance in tbe case before us was properly disregarded on tbe trial, we cannot doubt, and tbe judgment appealed from must therefore be affirmed, with costs.

Judgment accordingly.

       How reported, (1 Kernan, 368.)


author: Slosson, J.

text:
    Constantine Sherry v. Henry Frecking and another.
    A possession of land is rendered adverse by an unequivocal assertion of the party in possession of a title in himself, exclusive of every other right.
    Actual possession and improvement of the premises, as owners are accustomed to possess and improve, without any recognition by the party in possession of a right in any other person, or disavowal of a title in himself, raises a presumption that he entered and holds possession as owner, and amounts, in law, to a claim of title.
    Even when the party in possession asserts a deed as the foundation of his title, the adverse character of his possession will not be confined to the premises embraced in his deed.
    A portion of space occupied by the overhanging of a wall over land belonging to the plaintiff, may be recovered by him in an action under the Code to recover the possession of real property.
    "When in such an action, damages are given by the jury, a part of which the plaintiff was not, in law, entitled to recover, there must be a new trial, unless the plaintiff wholly remits the damages.
    (Before Duer, Hoffman and Siosson, J.J.)
    April Term, 1855.
    This was an action for tbe recovery of real property, and damages for its detention, and was tried before tbe Chief Justice and a jury, in January, 1855, wben a verdict was taken for tbe plaintiff, subject to tbe opinion of tbe court at General Term, upon a case and exceptions. Tbe material facts proved, and tbe proceedings on tbe trial are sufficiently stated in tbe opinion of tbe court.

      A. B. Millard, for tbe plaiutiiF,
    cited 12 John. 484; 9 Wend. 511; 2 Hill 526; 4 Hill 469; 4 Kent’s Com. 447; 2 Rev. Stat. 294.

      J. K Burrill, Jr., for defendants,
    cited 1 R. S. 740; 2 R. S. 149; 4 Kent’s Com. 484, and tbe case of Kent v. Mart, decided by this court at December General Term, 1851.
   By the Court.

Slosson, J.

Tbe plaintiff and defendants own lots adjoining eacb other, in Eigbtb street, in this city, on eacb of wbicb a valuable building bas been erected. Tbe plaintiff claims tbat tbe easterly wall of tbe defendants’ building encroaches to tbe width of four or five inches in its whole extent on bis lot; also, tbat it overhangs bis premises ten or twelve inches, and be seeks to recover in tbe present action tbe strip so encroached upon, and tbe space overhung. Tbe parties derive title from a common source — Mrs. Judith Winthrop. Plaintiff’s lot was conveyed by her to David D. Jones, on tbe 13th of June, 1843; by Jones to Alson Roberts, on tbe 1st of August, 1851, and by Roberts to tbe plaintiff, on tbe 2d of September, 1851. Tbe defendants’ lot was conveyed by Mts. Winthrop to James B. Murray, on tbe 31st of January, 1845; by Murray to Alexander M. Williams, on tbe 1st of May, 1846; by Williams to Walter Keeler, on tbe 3d of May, 1847; and by Keeler, to tbe defendants on tbe 2d of May, 1853. Tbe building of tbe defendants adjoining plaintiff’s lot, was erected in 1847, while Jones was tbe owner of tbe latter lot, and Keeler tbe owner of tbe defendants’ lot, and four years before tbe plaintiff acquired bis title.

While tbe building was in process of erection, Jones was occasionally on tbe premises, and was aware of tbe erection of tbe same, and made no objections or complaints of any encroachment.

Tbe building on tbe plaintiff’s premises was erected in 1851, and was built close up against tbe wall of tbe building, on defendants’ premises. Neither Keeler, nor Jones, at tbe time of tbe erection of tbe building on tbe defendants’ premises, was aware of any encroachment.

Shortly before tbe commencement of tbe suit, (January, 1854,) and after tbe defendants’ purchase, tbe plaintiff’s attorney called on Wheeler, (defendants’ grantor,) and stated to him, tbat on a survey of tbe premises, it was ascertained that tbe defendants’ building encroached on plaintiff’s lot. Keeler admitted tbe encroachment, and said be would see tbe plaintiff, and settle with him.

Keeler said also, that every building from tbe corner of Avenue B, encroached on tbe adjoining lot to tbe east, and that plaintiff bad bis full front on tbe street, and must encroach on bis neighbor, and that tbe owners ought all to settle and adjust tbe matter, and that be, Keeler, was willing to settle with tbe plaintiff.

It was also proved, that tbe defendants’ building leaned against tbe plaintiff’s building, (which was a four-story brick budding,) and bad gradually since its erection, inclined to tbe eastward, and that it now leans eight or ten inches beyond tbe perpendicular, by means whereof, tbe plaintiff’s chimneys, and building, were injured.

There-was an exception to tbe admission of this evidence, which bad been objected to on tbe ground, that tbe plaintiff could only recover under tbe pleadings, for an interest in tbe land itself.

Tbe court left to tbe jury to find tbe damages, both for tbe withholding of possession of tbe strip covered by tbe encroachment, and that occasioned by tbe inclination and overhanging of tbe defendants’ bouse/ which tbe jury fixed in gross, at $50, and a verdict was directed for tbe plaintiff for tbe premises claimed, and tbe damages found, subject to tbe opinion of tbe court, on a case to be made.

Tbe defendants contend, that Keeler, by including tbe strip in question, within tbe area of bis building as part of bis lot, though confessedly not embraced in bis deed, in effect asserted a claim of title thereto, which made bis possession of it adverse as against the grantor of the plaintiff, and, that therefore, tbe conveyance to tbe plaintiff was void, as being a grant of land held adversely at tbe time it was made, and if be is correct in this, such, undoubtedly, would be tbe effect on tbe plaintiff’s title. - (2 R. S. 739, § 147.)

- When an adverse possession is not founded on a deed, or on a judgment, or decree, of some competent court, there must be some unequivocal assertion of title in tbe party, exclusive of every other right. It may be by word of mouth.

Actual possession and improvement of tbe premises, as owners are accustomed to possess and improve, without recognizing a right in any other person, or disavowing title in himself, is enough to raise a presumption that the party took possession in the character of owner, and until the presumption is rebutted, by contrary evidence, will amount to a claim of title on his part.

Such has been held sufficient, when the claim rests on even a defective conveyance of the premises. Such would probably be sufficient, where the title is not asserted as resting on any .conveyance to the- extent to which the premises are actually occupied and improved.

The difficulty arises, when the claim rests on a deed,, and the deed does not in fact embrace the premises. This is qot like the case of a defective conveyance, which, notwithstanding it may be invalid to carry the title, embraces the premises, and is good as giving color of title, and as a foundation of claim of title.

If the party asserts the deed, as the foundation of his daim of title, is he confined, as to the adverse character of his possession, to the premises actually included in the deed?

The statute (2 R. S. 222, (marg.) § 9,) declares, that where the claim is founded on a written instrument, as being a conveyance of the premises in question, and there has been a possession for twenty years of the premises included in the deed, or of some part of such premises, under such claim, “the premises so included, shall be deemed to have been held adversely.”

The defendant in the present action, founds his''claim of title to the strip of land, in controversy on his deed, which does not in fact embrace it; and the plaintiff contends, that he cannot go beyond it, and that the strip is therefore occupied without claim of title, notwithstanding it is built over, and that therefore it has never been held adversely; that in fact, it is the case of a mere mislocation, or occupation by mistake, .without' any pretension of title on the part of the defendant, further than the honest supposition, that his deed covered it, and therefore, in- no respect, adverse in its character. »

We are referred by the defendant’s counsel, to a case decided by the General Term of this court, in-December, 1851, which is not reported, and 'which it is insisted, decides the very point in question. It is the case of James Kent v. John J. Hart.

In looking into this case,'we find it extremely parallel with the one now before ns. It was the ease of an encroachment of a few inches of defendant’s lot upon the plaintiff’s, as called for by the plaintiff’s deed, and which ran through the entire block, as in the case at bar.

The plaintiff’s deed was given in 1849. The defendant’s in 1887.

The difference between the two cases, arises from there having been proof in the case cited, of the defendant’s having always expressly claimed, that the premises in question were covered by his deed, though in fact they were not, there being no such proof in the case at bar. In both cases, the strip in dispute, is covered by the defendant’s building, and is included in the plaintiff’s deed. On the trial of the case cited, the presiding Judge submitted the question to the jury for a special finding, whether the defendant was in possession, claiming to be owner, at the date of the deed to the plaintiff, with directions to return a verdict for the defendant, if they found this question in the affirmative, wMch they did; and the verdict was accordingly entered for the defendant,. and on exceptions to this charge, and directions, the case was taken by appeal to the General Term, where the judgment and verdict were affirmed.

Whether this decision be considered as a judicial construction of the statute, (2 R. S. 294, marg. § 9,) or as holding that, independently of the statute, an adverse possession may be .created, by claiming title under deed, and showing possession, in connection with it, though the premises are not embraced in it, it is clearly binding upon us, whatever may be our views on the question, were it now presented for our adjudication for the first time.

The fact that there was proof in that ease, that Hart the defendant actually asserted or claimed, that his deed covered the premises, does not distinguish that case from the present, in which no such claim has been pretended to have been made, since the difficulty does not turn on the question of whether the defendant, verbally or otherwise, expressly asserted or claimed that his deed embraced the land in dispute, but whether, having founded his claim upon his deed, he is not by the statute, confined to the premises included within it, as being adversely held, and if he is, then the open assertion of the claim becomes immaterial.

In other words, his saying that he claimed under his deed, ■would be no higher assertion of a claim, than the mere production of the deed, as the foundation of the claim, if the rule be, that the adverse possession cannot be extended beyond the boundaries in the deed.

We therefore, hold, that the defendant has established an adverse possession in respect to the strip of land claimed to be recovered in this action, and that as to that, the plaintiff’s deed is, in judgment of law, to be considered as void.

The plaintiff also claims to recover possession of that portion of space occupied by the overhanging of the wall of defendant’s house, and which is shown to project several inches over the line "of the defendant’s adverse possession.

The claim is novel, but we do not see why it is not well founded, nor why, if A builds over though not upon'B’s land, B may not have his remedy by ejectment.

The action is for the recovery of real property, a term which is synonymous with “lands, tenements, and hereditaments.” (Code § 462.) “ Land,” it need hardly be said, extends upwards as well as downwards, as far as the convenience of the owner of the subjacent soil may see fit to extend it. (8 Kent, 487.)

The plaintiff would be entitled to recover in respect to this encroachment, but as joint damages have been assessed, in respect both to the withholding by the defendants of the possession of the strip, and the injury to the plaintiff’s premises, by the overhanging of the wall, and as these damages cannot be severed and apportioned by the court, unless the plaintiff shall remit them entirely, there must necessarily be a new trial If the plaintiff shall consent to remit the damages, and also to modify the. ver diet so as to confine it to the space overhung by the wall, he will be entitled to judgment on the verdict, as modified.


text:
    Henry B. Hart v. Stephen Potter.
    'When it appears that a promissory note, made for the accommodation of the payee, ■was obtained from the payee hy fraud, the holder is hound to prove that if was transferred to him for value, and before its maturity. He is not, however, hound to prove in addition that he had no notice of the fraud when the note was transferred to him, hut the burden of proving facts sufficient to charge him with' notice, rests upon the defendant.
    Judgment for the plaintiff, with costs.
    (Before Dueb, Hoffman and Slosson, J.J.)
    April Term, 1855.
    This was an action by tbe plaintiff, as endorsee, against tbe defendant, as maker of a promissory note for $438.40.
    Tbe complaint stated tbat tbe note was dated on tbe 30tb of October, 1852, was payable six months after date .to tbe order of one James D. Potter, and by bim was endorsed to tbe plaintiff. It averred demand and refusal of payment, and demanded judgment for tbe amount of tbe note, witb interest.
    Tbe answer.of tbe defendant admitted tbe making of tbe note, but alleged tbat it was made for tbe accommodation of tbe payee, James D. Potter, wbo promised to pay it at its maturity, — tbat while it was in bis bands, one Felix ISTewfielder sold and delivered to bim fifty baskets of champagne, and four thousand segars, and at tbe time of such sale-and delivery, represented to him," and warranted tbat tbe champagne was genuine imported-champagne,- and tbe segars genuine Spanish segars, and tbat tbe said Potter, relying upon such representation and warranty, bad transferred tbe note to'ISTewfielder, in part payment of the champagne and segars so purchased and delivered. Tbat tbe representation and warranty so made by ISTewfielder, were wholly false, and known to be so by bim when made, both tbe champagne and tbe segars being spurious and wholly worthless articles. Tbe answer also alleged, tbat tbe note bad not been transferred by ISTewfielder to tbe plaintiff for any consideration, but tbat it still belonged to ISTewfielder, for whose benefit tbe action was prosecuted.

      The cause was tried before Bosworth, J., and a jury, on tbe 15tb of December, 1854.
    Upon tbe trial, tbe note baying been produced and read in evidence, and tbe plaintiff baying rested, evidence was given on tbe part of tbe defendant, tending to establish tbe defence set up in tbe answer, and evidence was then given on tbe part of tbe plaintiff, tending to prove tbat tbe note bad been received by bim from Newfielder, before its maturity, in payment for a quantity of segars sold and delivered by bim to Newfielder. No facts or circumstances were proved, or appeared in evidence, tending to charge tbe plaintiff with notiee of tbe fraud, by which Newfielder bad obtained possession of tbe note.
    Tbe testimony being closed, tbe Judge charged tbe jury as follows:
    “ Tbe making of tbe note is admitted; and tbe first question of fact to be determined is, whether Newfielder obtained the note from James D. Potter by fraud. If you shall find tbat be did, tbe defendant can make any defence in this action tbat be could have made if Newfielder bad continued to own tbe note, and this action was in bis name, and for bis benefit, unless you are satisfied tbat tbe plaintiff’ took it before maturity and for value, and without notice of the fraud.
    “ If you should find tbe question of fraud in favor of tbe defendant, tbe next question is, is tbe plaintiff a bond fide bolder of tbe note, taking it before it came due ? If you should find tbat tbe plaintiff became owner and was possessed of tbe note before its maturity, tbat be paid value for it, and took it without any notice of tbe fraud, be is entitled to recover tbe amount of tbe note and interest.
    “ If tbe plaintiff proves tbat tbe note was transferred to him in tbe ordinary course of business, before its maturity, and for value, be is entitled to recover, unless tbe evidence given satisfies a jury, tbat be took it with notice of frauds or other defects, which could have prevented a recovery upon it by tbe person from whom be took it. If tbe defendant relies upon tbe fact of tbe plaintiff’s having notice of tbe fraud at tbe time be took tbe note, tbe burden of proof, after tbe plaintiff has shown tbat be took it before maturity, and for value, is upon tbe defendant. If the evidence as to tbe circumstances under which tbe plaintiff took the note, satisfies the jury that the plaintiff had notice of the fraud when he took it,'that-is enough to entitle the defendant to a verdict. But if it does not, the plaintiff is not hound to prove directly and affirmatively that he had no notice, but the defendant must show that he had such notice. If you find the question .of fraud in favor of the defendant, he will be entitled to a verdict, unless you also find that the note was transferred to the plaintiff before it was due, and for value, and without notice of the fraud, or of any circumstances which would ordinarily induce a person to suspect, that it had been fraudulently obtained by New-fielder.
    “In the latter event, you will find in favor of the plaintiff for the amount of the note and interest.”
    And the counsel for the defendant then and there excepted to that part of the charge in which it states that if the defendant relies upon the fact of the plaintiff’s having notice of the fraud at the time he took the note, the burden of proof after the plaintiff has shown he took it before maturity and for value, is upon the defendant. The counsel called upon the court to charge the jury that the plaintiff was, under the circumstances above set forth, bound to give 'some evidence to satisfy the jury that he had no notice of the fraud when he took the note.
    The court declined to charge, otherwise than above set forth, and the defendant then and there excepted.
    The jury, under the charge of the court, found a verdict for the plaintiff for $482⅛⅛ dollars damages, subject to the opinion of the court on a case to be made to be heard in the first instance at General Term, with power in the court to dismiss the complaint in case they should adjudge the cause of action not sustained by the testimony.

      O. P. Schermerhom, for the plaintiff,
    moved for judgment on the verdict.

      JS. Wheaton, for the defendant,
    insisted that the court, according to the power reserved, ought to dismiss the complaint.
   By the COURT.

Duer, J.

The only question that we are required to consider is, whether the proof given by the plaintiff ■upon the trial 'was sufficient to justify the submission of tbe case to tbe determination of tbe jury. If tbe complaint ought to baye been dismissed, we bare power to dismiss it now, and tbat power it will be our duty to exercise.

In order to meet tbe defence, tbat Newfielder bad obtained tbe note from tbe maker by fraud, tbe plaintiff was • bound to prove tbat it was delivered to bim for value, and before its maturity. Tbat it was passed into bis bands before its maturity was clearly proved, and altbougb tbe fact tbat be gave value for it was not conclusively proved, tbe proof was quite sufficient to sustain tbe verdict. Tbe Judge would certainly bave erred bad be withdrawn tbe question from tbe jury.

Proof was therefore given of all tbe facts tbat, in order to establish bis title and repel tbe defence of fraud, tbe plaintiff was bound to prove. It is a great mistake to suppose tbat be was bound to prove, in addition, tbat be bad no notice of tbe fraud. He was not bound to prove a negative. Tbe burden of proving facts sufficient to charge bim with notice rested on tbe defendant, and not a particle of evidence to justify tbe imputation was given.

We do not understand tbat tbe Judge gave a positive direction to tbe jury to find a verdict for tbe plaintiff.

Tbe questions of fact which it was their province to determine were properly submitted, and tbe verdict which they rendered must be regarded as adverse.

We cannot say tbat it is a verdict, without or against evidence, and tbe plaintiff is therefore entitled to judgment.