text:
    In the Matter of Proving the Last Will and Testament of Simon Folts, Deceased.

      Execution of a will — contemporaneous signature of the testator on another paper— testamentary capacity — non-expert opinions — executor as a witness to personal tra/nsactions with the testator.

    On the signing of his will hy a testator seventy-four years of age, there were some imperfections in the spelling of his signature, subscribed in the presence of the attesting witnesses. The testator wrote his name on another piece of paper simultaneously with the execution of the will, which paper one of the attesting witnesses preserved and produced at the hearing before the surrogate, upon a contest over the admission to probate of the will on the ground, among others, that it was not duly executed.

      Held, that this piece of paper was properly received in evidence, in connection with the witness’ testimony, as part of the res gesta,.

    On the contest as to the admission of the will to probate, on the grounds, among others, of lack of testamentary capacity and the presence of undue influence, the evidence showed that the testator, was a laborious farmer during the larger portion of his life; that he was prosperous and accumulated the property of which he died possessed, and that he had not only physical vigor but considerable intelligence and ability, but that towards the latter years of his life he had become accustomed to depend to a considerable extent upon the advice and suggestions of his wife. There was evidence on the part of the contestants to the effect that there were days when the memory of the testator was in a more or less impaired condition, and that following such days there would he. days on which he would he in better condition of mind and memory. It appeared that the will accorded with previous declarations made by the testator in.respect to the disposition of his property.'

      Held — applying the rules that the fact that an aged person is forgetful and at times labors under slight delusions does not per se establish want of testamentary capacity ; that there is no presumption against a will because made by a man of advanced years; that testamentary incapacity cannot be inferred from an enfeebled condition of mind or body; and that the burden of proof is upon the proponents of a will to show by prima facie proof a testamentary capacity at the time of the execution of the will — that the evidence did not establish that the testator’s disposition of his property was produced by improper influences, or that he was laboring under an insane delusion at the time of the execution of his will; and, hence, that findings by the surrogate of the existence of testamentary capacity and the absence of undue influence should be sustained.
    Persons not experts, after testifying to facts and incidents in relation to a testator, tending to show soundness of mind or the contrary, may testify to the impression produced upon them thereby, and also whether the acts and declarations testified to seemed to them rational or irrational, but they may not testify as to. the general soundness or unsoundness of mind of the testator; the testimony must be limited to the witness’ conclusions from the facts testified to by him.
    On a contest as to the admission of a will to probate, the mere fact that a witness is the executor of the will, and, therefore, interested in the estate to the extent of his fees, does not render him incompetent, under the Code of Civil Procedure, to testify, on behalf of the proponents, to transactions had with the testator, bearing upon the question of the due execution of the will.
    Appeal by the contestants, Lovina Whaley and others, from a part of the decree of the surrogate of Jefferson county, made on the 29th day of May, 1891, and entered in the office of the surrogate on that day, admitting the will of Simon Folts, deceased, to probate.
    March 31, 1890, Russell B. Biddlecom, of the town- of Orleans, named as executor in the will of Simon Folts, presented a petition to the surrogate of Jefferson county, requesting that citations be issued addressed to the heirs and next of kin of the deceased to attend a probate of his will; and on the second of June a supplementary petition was filed, and upon the return of citations on the 2Jth of June,, 1890, Lovina Whaley, Lucy A. Baxter, Harvey Folts and others,, heirs at law and next of kin, objected to the probate of the instrument presented and propounded as the last will and testament of the deceased, on the following grounds:

      First. That the instrument was not published according to law,, and “ was not in fact duly and legally made, executed and published, and is invalid and void.”

      Second. “ That said instrument was not in fact made, executed and published by said deceased, and is not his last will and testament.”

      Thvrd. “ That said instrument is not a legal and valid will and is not the free act and deed of said deceased.”

      Fourth. “ That at the time said instrument is alleged to have been made, executed and published, said deceased was not of sound and disposing mind and memory, and was incompetent to make, execute and publish a valid will.”

      Fifth. “ That at the time said instrument is alleged to have been made, executed and published, said deceased had lost his mind and memory, and could not write or speak intelligently; and said instrument was not signed, executed or published by said deceased.”

      Sixth. “ That the alleged making, execution and publication of said instrument was instigated, obtained and procured through and by means of undue influence, artifice, duress and fraud practiced upon said deceased, and said alleged will is not, therefore, the free and voluntary act and deed of said deceased, and is invalid and void.”
    Voluminous evidence was taken before the surrogate, and on the 29th of May, 1891, he made his decision thereon and found as matters of fact, viz.:

      “ 1. That the testator, Simon Folts, at the time of the execution ■of the will in question, on the 7th day of January, 1889, the day of the date thereof, had testamentary capacity to make a will disposing of his property, real and personal.

      “ 2. That said will presented for probate was duly executed in •compliance with the statutes in regard to the execution of last wills and testaments.

      “ 3. That said will was drawn by Russell B. Biddlecom in strict compliance with instructions received by said Biddlecom from Simon Folts solely, and was read over by said Biddlecom to said testator just prior to the time it was signed and executed by testator on the day of the date thereof.

      “ i. That the testator comprehended, knew and understood fully the contents of said will, and the disposition therein made by him of his property, real and personal, at the time of the execution thereof.

      “ 5. That he was not under any restraint, and was in the enjoyment of his mental facilities, uninfluenced by any person or persons, and was in all respects competent to malte a testamentary disposition of his property.

      “ 6. That said testator signed his name at the end of said will, on the day of the date thereof, and thereafter, and on the same day, each one and all of the subscribing witnesses to said will signed their names thereto respectively, each at the request of said testator, and in his presence; the witnesses Spencer and Dale signed in the presence of each other; the witnesses Scoville, Marshall, Linkenfelter and Beardsley signed in the presence of each other.”
    The surrogate decided as matters of law, viz.:
    “ 1. That said will must be admitted to probate.

      “ 2. Therefore, let a decree be entered herein, admitting said will to probate, and establishing and confirming said will as a good and valid will of real and personal property, and awarding letters testamentary thereon to the executor named therein, said decree to be entered of even date herewith.” And on the same day a decree was entered, admitting the will to probate, and decreeing that letters testamentary issue to the executor named in the will, and that the expenses and costs of proponents “ be paid out of the estate of said deceased,” and fixing the sum thereof at $295.86. June 9, 1891, exceptions were served and filed. June 25, 1891, Lovina "Whaley, Juicy A. Baxter and other heirs at law appealed from the whole of the decree u except so much as awards costs and expenses to the parties who appeared and presented said will for probate.”

      Porter & Walts, for the appellants.

      Hannibal Smith, for the respondents.
   Hardin, P. J.:

Simon Folts was born near Little Falls, in Herkimer county, September 1, 1815, and when about twenty years of age his father removed to Jefferson county, where the deceased resided until the time of his death, which occurred at Ivafargeville, on the lJth day of March, 1890, at the age of seventy-four years and six months. Jane Folts, his wife, died in November, 1888. The testator, at the time of his death, owned about 600 acres of land, supposed to be worth in the neighborhood of forty dollars an acre, and certain personal property, making the aggregate of his estate, both -personal and real, worth about $30,000. Ilis only heirs and next of kin were his sisters, Catherine Budlong, Lovina "Whaley, Salome E. Folts, Lucy A. Baxter, and the children of David Folts, a deceased brother, and the children of Eliza Witherstine, a deceased sister. By the terms of the will, one-half of the real and personal property was devised and bequeathed to Gideon N. Budlong, Lucy Budlong and Salome E. Budlong, the children of Catherine Budlong; and one-fourth of the estate, real and personal, was bequeathed and devised to the children of his deceased brother, David Folts; and the other one-fourth was bequeathed and devised to the children and descendants of his deceased sister, Eliza Witherstine. ■ The will contained no provision in favor of his sisters Lovina Whaley, Lucy A. Baxter and Salome E. Folts. He liad resided upon his farm lands until the fall of 1888, when he purchased a house and lot in Lafargeville, and removed thereto, in which he remained until the time of his death. His wife Jane had a short illness in November of that year, when she died. Before her death she had made a will in his favor and he had made his will in her favor. On the 6th day of December, 1888, the testator executed and delivered a power of attorney to Russell B. Biddlecom, giving him general control and supervision over all the lands ” belonging to him in Jefferson county, to “ collect and receive all dues, notes and rents, and invest as he may deem proper all moneys he may receive into his hands.” On the 13th of August, 1888, the testator and his wife joined in a lease to Josiah Sayles of the 600 acres of land situated in the town of Orleans, then occupied by Sayles, for the term of five years, at an annual rental of $1,200, containing numerous stipulations not necessary to state. On the Jth of January, 1889, the testator executed his will at the residence of his sister, Mrs. Budlong, in Lafargeville, which was prepared by Mr. Biddlecom, the executor, at the request of the testator. Before the same was executed Dr. Spencer of Watertown arrived at Lafargeville, and after dining with Dr. Dale, visited the house of Mrs. Budlong in company with Dr. Dale, and there found the testator and Mr. Biddlecom, and a protracted conversation was had between the deceased and the physicians in the presence of Mr. Biddlecom. When the physicians arrived at the house the conversation was. opened by the testator indicating to them that he was aware of the object of their visit, using the following words: I (you) came for the purpose of finding out whether I (he) knew enough to make a will.” Near the close of the conversation, the physicians having reached the conclusion that the testator was competent to make a will, the same was produced by Mr. Biddlecom and was read over to the testator in its entirety, and certain portions of it were reread and the provisions thereof repeated to the testator, and he avowed that he understood the same, and that the will was in accordance, with his wishes and desires, and thereupon he sat down to a table, which was prepared for the purpose of the execution of the will, and took his pen, and finding some little difficulty as to the flow of the ink, the pen was replenished by the hand of Mr. Biddlecom, a,nd in the presence of the three persons the will was subscribed, (there were some imperfections in spelling the signature of the testator), and he thereupon declared the same to be his last will and testament, and requested the two physicians to become subscribing witnesses thereto. The attestation clause was prepared, and in the presence of the testator, and at his request, the two physicians affixed their signatures below the attestation clause. It seems that the testator wrote his name on another piece of paper simultaneous with the execution of the will, which Dr.' Spencer preserved and produced at the hearing before the surrogate, which was received in evidence, we think properly, in connection with his testimony as a part of the res gestee. (Matter of Colemam, 111 N. Y. 227.) Apparently when the parties separated, the will having thus been subscribed by the testator and the two physicians, was retained by Mr. Biddlecom from the close of that interview, -which was probably well on in the afternoon, until about seven o’clock in the evening, when four persons, in pursuance of a request, met the testator and Mr. Biddlecom, and in the presence of those four persons the testator acknowledged the execution of the will, and declared it to be his last will and testament, and requested the four persons, Seoville, Marshall, Linkenfelter and Beardsley, to witness the same, and they thereupon, in his presence and in the presence of each other, subscribed their names to a second attestation clause written just below the one subscribed by the physicians. Thereupon the executor took tlie will, folded it and put it in an envelope, and banded it to tbe testator, wlio thereupon returned it to the executor, with a request that he keep the same safely for him, and he did so apparently until the occasion when it was produced in the Surrogate’s Court. Upon the hearing before the surrogate the two physicians were called in behalf of the proponents, and narrated all of the facts and circumstances occurring in their presence in respect to the execution of the will; the executor was also sworn as a witness, and he narrated the facts and circumstances attending the execution of the will in the presence of the physicians. After giving the facts and circumstances thus transpiring, these three witnesses vouched for the capacity of the testator, and in differing language expressed the conclusion that his acts and conversations impressed them as the acts and conversations of a rational man. They fully sustain the essential facts to warrant the belief that the testator was competent to make a will and that his “ act was free, voluntary and intelligent.” (Children's Aid Society v. Loveridge, 70 N. Y. 387 ; Horn v. Pullman, 72 id. 270.) The testimony of the four witnesses to the acknowledgment to the execution of the will, in the evening of the day the physicians attested the will, was produced, and after detailing the facts and circumstances appearing at the time of the acknowledgment of the will in their presence, and their subscription of the attestation clause, they freely state, in substance, that from their observations and from what transpired in their presence, the acts and utterances of the testator impressed them as being rational. Many other witnesses were called during the progress of the hearing before the surrogate, who detailed facts and circumstances appearing in their presence antecedent to the execution of the will, illustrative of the bearing, conduct, acts and intelligence of the testator. After detailing those facts and circumstances they have expressed the opinion that the acts and utterances of the testator were those of a rational person. It was conceded by the contestants during the trial that the testator was competent up to 1885. To meet the evidence of the proponents, to sustain the allegations of the contestants, numerous witnesses were called before the surrogate to testify as to facts and circumstances within their knowledge and observation relating to the physical and mental condition of the testator prior to the time of the execution of the will, and also as to his condition subsequent to its execution, and they were allowed, after giving their observations and knowledge of acts and events transpiring in their presence, to express their opinion in accordance with the rule in Clapp v. Fullerton (34 N. Y. 190), and they stated that, in their opinion, the acts and conversations of. the testator impressed them as being irrational. From the evidence given it appears that the testator was a laborious man during the larger portion of his life, and that he was prosperous and accumulated the property of which he died possessed, and that he had not only physical vigor, but considerable intelligence and ability, and that he had received the respect of his neighbors, and was regarded as a man of capacity and success as a farmer. Towards the latter years of his life he had become accustomed to depend to a considerable extent upon the advice and suggestions of his wife. Apparently, from the evidence given on the side of the contestants, there were days when he was in more or less impaired condition of memory, and following such days would be days in which he was in better condition of mind and memory. Doubtless, when the witnesses speak of his condition, when they say his acts were those of a rational, intelligent, unimpaired mind, they saw and observed him on his better days, and many of the observations and acts which impressed the witnesses avIio were called to say that their impressions were that his acts were not rational, transpired on his poorer days; that he should have “ good days ” and “ poor days ” is not at all a contrary condition in which persons in advancing years are found. In considering the evidence given by the proponents, and the evidence given by the contestants, notwithstanding some of the imperfections and irrational acts detailed by the witnesses for the contestants, it must be borne in mind that “ the fact that an aged person is forgetful, and at times labors under slight delusions, does not per se establish want of testamentary capacity” (Children’s Aid Society v. Loveridge, supra); and that it must be said that there is no presumption against a will because made by a man of advanced years; “ nor can incapacity be inferred from an enfeebled condition of mind or body (Horn v. Pullman, 72 N. Y. 276); and it must also be borne in mind that the burden of proof is upon the proponents to show by prima facie proof a testamentary capacity at the time of the execution of the will. (Matter of Ramsdell, 20 N. Y. St. Repr. 448.) After a protracted examination of the evidence found in the appeal book, and applying the rules referred to in the cases to which allusion has been made, as well as others bearing upon the subject, the conclusion is reached that the findings of the surrogate are sustained by the weight of the evidence upon which lie was called upon to act in respect to the capacity of the testator at the time of the execution of the will. .The will accords with previous declarations made by the testator in respect to the disjrosition of his property. Nor do we think that a case of undue influence was made out by the testimony furnished before the surrogate. (Brick v. Brick, 66 N. Y. 144.) Nor that his disposition of his property was produced by improper influences. (Carpenter v. Soule, 88 N. Y. 257 ; Matter of Will of Martin, 98 id. 193.) Nor does the evidence show that the testator was laboring under an insane delusion at the time of his execution of the will. (Opinion of Merwin, J., in Matter of Will of White, 5 N. Y. Supp. 295; S. C., 121 N. Y. 406.) The foregoing views lead us to agree with the surrogate in his conclusions of fact stated in his decision upon which the decree was entered. The learned counsel for the appellants upon the argument and in his brief, has called our attention to some exceptions taken during the trial before the surrogate. Scoville, one of the witnesses called for the proponents, who subscribed the second attestation clause, gave the facts and circumstances transpiring on the occasion of his subscribing his name, and the following question was propounded to him: “ Q. What do you say from the acts that occurred that night, the acknowledgment of Mr. Folts to this will, the signature and your witnessing there ? What do you say as to whether those acts and words of Mr. Folts, whether he was sane ? ” This was objected to by the contestants on the ground that it was incompetent and immaterial; and, second, “ It appears the will had been drawn and executed prior to this time, and that the condition of the man is not competent with a view of establishing his mental capacity for executing the will prior to this time.” The objections were overruled and an exception taken, and thereupon the witness answered, “I should have to say he was, as far as I ■ could ascertain from anything that I could see.” Marshall, another of the subscribing witnesses, was called, and testified to the acts and declarations occurring at the time of subscribing the second atiesta tion clause, and there was propounded to him the following question: Q. What do you say as to the declarations and acts of Mr. Folts on the occasion of the acknowledgment of this will, this signature and the witnessing there on that occasion. What do you say as to whether he was sound or not ? ” This was objected to on the ground that it was incompetent and immaterial and witness was not competent to give his opinion. The objections were overruled and an exception taken. Thereupon the witness answered, “ I saw nothing to the contrary.” Linkenfelter, another subscribing witness, was called, and detailed the circumstances occurring at the time of the subscription of the second attestation clause, and the following question was put to him : Q. What do you say from the acts and words and appearance of Mr. Folts on this occasion, and the acknowledgment of this will, and the request for your witnessing it, whether he was sane or not ? ” This was objected to as incompetent and immaterial, and that the question is not proper and witness is not shown competent to testify upon the subject. The objections were overruled and an exception taken. The answer of the witness was, “ I should take the ground that I was not competent to say whether a man is competent, but he sat there and answered the questions all right that Mr. Biddlecom asked him and appeared all right and natural.” Thereupon the -following question was propounded: “ Q. I am talking about these acts. What do you say from what you observed there in reference to these acts?” “A. His acts were all right; he sat there and answered the questions; he appeared all right, I will say that.” In considering the objections made to the evidence it is to be observed that no specific objection was taken that the witness “ is not legally competent to express an opinion on the general question whether the mind of the testator was sound or unsound.” (Clapp v. Fullerton, 34 N. Y. 195.) The answers given by the witnesses indicate that they did not understand they were called upon to express their judgment generally as to the testator, but rather to express the impression produced, upon them there made by the acts ánd circumstances transpiring on the occasion of the acknowledgement of the will.

In Paine v. Aldrich (133 N. Y. 544), where the rule in respect to the opinions of witnesses was under consideration, it appears that the trial court allowed the following question: From the conversations you bad with him and from his actions, his acts in your presence, were those conversations or those acts those of a rational or an irrational man ? ” which the witness answered in his own way ; that rule was approved and is in accordance with the rule as stated in People v. Conroy (97 N. Y. 62), where it was said: “ To render the opinion of one not an expert competent in such a case, it must be limited to his conclusion from the specific facts his testimony discloses.”

In Hewlett v. Wood (55 N. Y. 634), it was said, viz. : “Persons not experts, after testifying to facts' and incidents in relation to a testator, tending to show soundness of mind or the contrary, may testify to the impression produced upon them thereby, and also whether the acts and declarations testified to seem to them rational or irrational, but they may not as to the general soundness or unsoundness of mind of the testator.”

In Holcomb v. Holcomb (95 N. Y. 316), the rule was discussed and it was again asserted that the “ testimony must be limited to his conclusions from the facts testified by him.”

(2) We think the ruling made in the course of the cross-examh nation of the witness Linkenfelter presents no error. Before the witness left the stand he -was jsermitted to testify all he was competent to speak of within the rule.

(3) Mr. Biddlecom, the executor, was called in behalf of the proponents and stated that he drew the will and that he had resided in Lafargeville fifty years, with the exceptions of three years when lie was county clerk, and then he was asked to state generally the business transactions he had had with the deceased and his relations with him. This question was objected to by the contestants on several grounds, and among them “ that being the sole executor and interested in the estate to the extent of his fees, he is incompetent under the section of the Code.” The objection was overruled and an exception was taken.

When Rugg v. Rugg (21 Hun, 383), was before this court, in the course of the opinion prepared by me, I said: “ Jenks, who was named as one of the executors, was also called as a witness in behalf of the proponents, and gave evidence of the facts and circumstances attending the execution of the will. TIis testimony was objected to by the contestants. But the authorities require us to

hold that he was a competent witness, and that his testimony was properly received by the surrogate. (McDonough v. Loughlin, 20 Barb. 238 ; Children’s Aid Society v. Loveridge, 70 N. Y. 387; Pruyn v. Brinkerhoff, 7 Abb. Pr. [N. S.] 401.) We must, in considering the question raised in respect to the due execution of the will, give effect and force to the evidence given by Jenks. He was a man about sixty years of age (Biddlecom was about sixty-eight), had been accustomed to draw wills and supervise their execution, and the evidence given by him is to the effect that the essentials to a due execution were all observed, and he is emphatic in his statements that the testator subscribed his name before the subscribing witnesses. It is settled beyond doubt or discussion that the due execution of a will may be established by other evidence than such as may be derived from the subscribing witnesses.” That case was affirmed by the Court of Appeals. (See 83 N. Y. 592.)

In Matter of Will of Smith (95 N. Y. 516), the executor who presented the will for probate was “ the principal legatee,” and, therefore, the case is distinguishable from the one before us. That case is explained by Ruger, Ch. J., in Matter of Will of Wilson (34 Alb. L. J. 476 ; S. C., 103 N. Y. 374). In Lane v. Lane (95 id. 494), the witness was not only executrix, but a legatee, and the case, therefore, differs from the one before us.

Our attention has been called to numerous other exceptions taken during the trial; we have examined them, and are of the opinion that they do not require us to order a new trial.

In Clapp v. Fullerton (34 N. Y. 190), it was said, in respect to appeals from surrogates, that “ The review is in the nature of a rehearing in equity, and the admission of improper evidence on the original hearing furnishes no ground for reversing the final decision, if the facts established by legal and competent testimony are plainly sufficient to uphold it.” The substance of the rule has been put into section 2545 of the Code of Civil Procedure, in the following language: “ But such a decree or order shall not be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.” (Matter of Will of Smith, 95 N. Y. 527 ; Horn v. Pullman, 10 Hun, 471; S. C. affd., 72 N. Y. 269 ; Brick v. Brick, supra ; Matter of Will of White, 121 N. Y. 406.) That part of tlie surrogate’s decree awarding costs to the proponents was not appealed from, and is not here for consideration. That part of the surrogate’s decree awarding costs was within his discretion. So much of the decree as is appealed from should be affirmed, with costs, payable out of the estate. (Code Civ. Proc. § 2589 ; Matter of Will of Wilson, 103 N. Y. 374 ; Matter of Budlong, 33 Hun, 236 ; S. C. affd., 100 N. Y. 206.)

MebwiN and Paekek, JJ., concurred..

Decree of the Surrogate’s Court of Jefferson county, so far as the same is appealed from, affirmed, with costs to the respondents, payable out of the estate.


source: Caselaw Access Project

author: Harden, P. J.:

license: Public Domain

text:
    John W. Collis, as Administrator of Walter Collis, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Personal injury — contributory negligence on tlie pcvrt of an infant — a trespasser u/pon a rail/road trade.

    In an action brought to recover damages for the death of a boy between eight and nine years of age, caused by a railroad train, it appeared that the deceased was an active boy, familiar with the defendant’s railroad tracks, and apparently had been doing some errand for the parties occupying a circus advertising car standing on a “dead” or branch track, between two passenger tracks, on the railroad company’s land near a street crossing in a village, and on the other side of the street from the depot; that he started from the platform of the circus car, whence he had a view of an approaching train, and attempted to run across (but not at the street crossing) one of the passenger tracks on which an express trajn was approaching at a speed of thirty-five miles or more an hour, was struck by the train and killed.
    The question whether the deceased was guilty of contributory negligence, within the measure of care and caution to be expected of him, was submitted to the jury as a question of fact essential to the maintenance of the action, and a verdict was rendered in favor of the defendant, the railroad company.

      Held, that the question of contributory negligence on the part of the deceased was fairly and properly left to the jury.
    The trial court charged the jury that the deceased was a trespasser upon the land of the railroad company; that there was no obligation upon the company to blow the whistle or ring the bell upon the train to notify him of its approach, as he was not upon the crossing ; and that the defendant owed him no obligation or protection except that obligation which belongs ordinarily to • the business of life.

      Held, that the charge of the court was proper.
    Appeal by tbe plaintiff, Jolm W. Collis, as administrator of "Walter Collis, deceased, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of Herkimer county on tbe 26th day of April, 1892, upon a verdict in favor of' tbe defendant rendered at tbe Herkimer Circuit, and from an order denying tbe plaintiff’s motion for a new trial made upon tbe minutes.
    Tbe action was brought to recover damages for tbe alleged negligence and the alleged wrongful act of the defendant in killing the plaintiff’s intestate at the village of Herkimer on tbe 14th day of May, 1889.

      JE. La Grcmge Smith and J. A. Steele, for tbe appellant.

      G. D. Prescott, for tbe respondent.
   Harden, P. J.:

Main street in tbe village of Herkimer crosses tbe tracks of tbe defendant at a right angle, and defendant’s passenger depot is east of Main street. Its passenger tracks 1 and 2 are separated by tbe depot. No. 1 on the south track goes south of tbe depot, and No. 2 north. West of Main street was a “ dead track ” or a branch track, between tracks Nos. 1 and 2, extending some 175 feet west of Main street and easterly of Washington street. At the time of tbe accident an advertising car or advance car of a circus company stood upon tbe dead track, and was occupied by persons in the employ of the circus. In one end of tbe car arrangements were placed for cooking, and in other parts of tbe car arrangements for distributing tbe advertising bills and for paste and other materials used in preparations to post and circulate tbe bills heralding tbe approach of tbe circus. Tbe accident occurred about five twenty-five in tbe afternoon. As an express train was passing along track No. 2 westerly, and approaching a point opposite tbe circus car, tbe deceased, a boy some eight or nine years of age, who apparently bad. been doing some errand for tbe parties occupying tbe circus car, stood upon tbe easterly platform of tbe circus car, and from that point could see tbe approaching train 1,000 feet or more distant; he apparently looked at it, and as the train neared the car platform on which he was standing he stepped down, and in a direction northwesterly taken by him, attempted to pass over track No. 2, which was the one occupied by the approaching express train. He failed to make his transit across track No. 2 so as to clear the approaching train, and was caught by the cowcatcher, thrown into the air and killed. Apparently the express train was approaching at a rate of speed of thirty-five or more miles an hour, there being some difference in the opinion expressed by the witnesses on the subject of speed of the train, and as to whether the engineer was endeavoring to make up lost time. The evidence in that regard was fully presented to the jury in the charge delivered by the trial judge. Apparently the deceased, after he got down from the car and started to cross the track going northwesterly, turned his head and looked to the east and immediately started on a run, and while thus endeavoring to pass across the track he was struck by the engine. He had been seen at the advertising car carrying water for the cook in the car from a point near the east end of the passenger depot. There was nothing to prevent a person from alighting from the end of the circus car and passing southerly. The defendant owned the property lying between Main and Prospect streets and was using the same for tracks and cars and in carrying forward their business. The deceased was an ordinary sized boy of his age, ordinarily intelligent and resided east of the passenger depot and south of the railroad about 100 feet from it; he was accustomed to attend school, and -in doing so crossed the railroad in passing to and from his school, and he was accustomed to go over the track at other points, having been at times sent to stores to do the trading for his family on the north side of the railroad and on Main street, and when engaged in such business he was required to cross the tracks, and had been so accustomed to cross them for some two years before the .accident. He had good hearing and eyesight and ap23arently was a quick, active, bright boy, and for various purposes he had been more or less around the passenger depot. Whether the deceased was guilty of contributory negligence was submitted to the jury as a question of fact. In doing so the coiirt followed the doctrine laid down by Andrews, J., in McGovern v. N. Y. C. & H. R. R. R. Co. (67 N. Y. 422). The doctrine of that case was followed in Barry v. N. Y. C. & H. R. R. R. Co. (92 N. Y. 294). The same doctrine was repeated at the close of the opinion in Byrne v. N. Y. C. & H. R. R. R. Co. (83 N. Y. 620). (Swift v. The Staten Island Rapid Transit Railroad Company, 123 id. 645.)

In Tucker v. N. Y. C. & H. R. R. R. Co. (124 N. Y. 316), it was said: “ An infant of tender years is not expected to exercise the same care and caution which is required of a person of more advanced age, so that it' frequently becomes a question for the jury, under proper instructions by the court, whether a child exercised that measure of care and caution which should be required and expected from it.” "We think the plaintiff could not complain of that branch of his case, which was submitted to the jury fairly. In considering a case where a boy was injured by an approaching train in Wendell v. N. Y. C. & H. R. R. R. Co. (91 N. Y. 428), it was said by Eugee, Ch. J., viz.: “ lie should not be permitted to make close calculations to determine whether he can safely pass in front of an approaching body, and when the experiment has failed, charge the consequences of his mistake upon the owner of the colliding vehicle or property. (Belton v. Baxter, 54 N. Y. 246.) ” In the course of the charge the trial judge said: “It ajjpearing that he was acquainted with the running of the cars, that he was a boy accustomed to hang around the depot there, as the testimony of Fox shows, and accustomed to get on and off his car at different times, and that he had been ordered off his car at different times, and had been ordered away from the road, tending to show, I say, that he was acquainted, although a boy, with the running and the operation of the cars, being thus acquainted, under all the circumstances, if he was guilty of carelessness, although a boy, then there can be no recovery by the administrator in this case any more than there could be by the boy himself, if he were the living party and had brought an action for an injury to his person. * * * He must come here free from fault on his part, and if he comes here charged with any fault, however remote, which caused or contributed to the injury which lie complains of, he is without remedy. * * * Therefore, if you find that he was careless in the maimer in which this accident happened and in the position in which he put himself in reference to ibis train, your verdict will be for tbe defendant. '* * * JBut if you find, under the circumstances, that the boy was not guilty of any act of negligence for which he should be charged, that caused or contributed to his injury, then the next question which would be for you to determine is, was the defendant guilty of any act of negligence on its part that caused the injury of which the plaintiff complains.” Thereafter the court proceeded in its charge to consider the question relating to the alleged negligence of the defendant, and adverted to the speed of the train and to the question whether a bell was rung or a whistle was sounded, and, continuing his charge, he said: “ But there was no obligation on the part of the defendant, the railroad company, to blow the whistle or ring the bell upon this train to notify the boy of its approach, for the reason that he was not upon a crossing. He was not rightfully upon the lands of the defendant, the railroad company. He was a trespasser there. He had no right to be there, and, as an adult, if he had been injured while thus of his own volition upon the lands of the defendant, the fact that he was a trespasser at the time would have prevented any recovery on his part. The boy, therefore, being a trespasser on this occasion, was entitled to no notice of the approach of the train, because no duty was owing by the defendant to him, he being there wrongfully at the túne, and the defendant owed him no obligation or protection except that obligation which belongs ordinarily to the business of life. * * 'x' Now, what obligation did the railroad company owe to this boy % He was a trespasser there, as I have stated. He had no right to be upon the railroad track, and it is recognized, not only as a common-sense proposition, but as the growth of our daily observation, that a railroad track over which a steam engine with a train of cars attached is driven with the fearful velocity that they are run, is always a place of danger, and, therefore, a place that everybody is bound by law and by a consciousness of self-preservation to protect themselves against.” At the close of the charge, the counsel for the plaintiff asked for an exception in the following language: “ To that part of your charge in which you say that the boy was a trespasser upon the lands of the railroad at the time he was killed.” In response thereto, the ■ court observed: “ Yes; there is no evidence of any such license or consent on the part of the railroad company as justified the boy in being where he was upon the lands of the company. The lands of the railroad company, over which their tracks pass, outside of some right that is secured to the public beyond the track, is exclusively belonging to and for the safety of the public, must be secured in the company itself.” After that observation, the counsel for the plaintiff took an exception. It is now insisted in behalf of the plaintiff that the exceptions present error. The point where the intestate received injuries was no part of the public highway. It was the property of the defendant. It had a right to maintain its tracks and to operate its trains across the tracks at that point. The-deceased had received no license from the defendant to enter upon that track at that point, and, therefore, the trial judge was warranted in stating that the deceased’s entry upon the land at the point where he received the injuries was a trespass. The defendant had a clear right to authorize the circus car to be and remain where it was upon its property; as was said in Nicholson v. The Erie Railway Company (41 N. Y. 525), it was “ placed there for a lawful purpose, and in the proper discharge of their usual and ordinary business. They had the same unqualified right which every owner of property has to do with his own as he pleases, and keep it and use it where and as he pleases, on his own ground up to the point when such use becomes a nuisance. Nicholson, the deceased, on the contrary, was not on his own ground. He was where he had no légal right to be. At most, he had a mere license to cross the defendant’s track, a license implied from use, and from the fact that such use had not been expressly forbidden. But such license created no legal right and imposed no duty upon the defendant, except the general duty which every man owes to others, to do them no intentional wrong or injury.” In the same case, at page 532, it was said in the course of the opinion, the intestate has no right as against the defendant to be there. It could at any time have revoked the license and then lie could not have crossed at that point without being a trespasser. The cars were lawfully upon the branch track, and the defendant had the right to have them there. The defendant owed the intestate no active duty. It owed him no duty whatever, except such as every citizen owes another. * * * It did not owe him the duty of active vigilance to see that he was not injured while upon its land merely by permission for his own convenience. ' If the point where the intestate was killed had been a public highway, or if at the time he had been a passenger in a car upon the main track, and he had been injured by collision with the cars coming down the branch track, or if in any other way he had been, not only lawfully, but in the exercise of a right at that point, the defendant would have owed him a duty.” The doctrine of that case was adverted to in McAlpin v. Powell (70 N. Y. 132), and the distinction was pointed out between a case where an infant was lawfully in the highway “ and a case where he is palpably invading the premises of another and is a mere trespasser. In the latter case a party is without the protection of the law except in special cases.”

It is insisted that the court committed an error in saying to the jury, “ there is no evidence of any such license or consent on the part of the railroad company as justified the boy in being where he was upon the lands of the company. The lands of the railroad company, over which their tracks pass, outside of some right that is secured to the public beyond the track, is exclusively belonging to, and for the safety of the public, must be secured in the company itself.” After such statement by the court a general exception was taken. If some portion of the remark made by the court was proper, then the exception is unavailing. The sentence, as we find it in the appeal book, is somewhat involved, and is apparently somewhat indefinite. We think the exception does not’ point out clearly any error. It is insisted, in behalf of the appellant, that the court committed an error in excluding the question as to the location of the mills “ along the line of the railroad on each side of it,” and also in excluding an answer to the question, “How many railroad crossings are there in the village of Herkimer ? ” The attention of the court was not called to any fact or circumstance indicative that an answer to the question propounded would shed any light upon the questions involved in the trial. We think the rulings made by the trial judge were not prejudicial to the plaintiff. The foregoing views lead us to sustain the verdict.

MeRwiN and Pabkee, JJ., concurred.

Judgment and order affirmed,, with costs.


author: Hardin, P. J.:

text:
    E. Darwin Hills, Respondent, v. Charles W. White, Appellant.

      Stock of goods in a store, taken for a debt — possession imiil title of the purchaser — levy and sale under executions against the debtor in favor of third pasties — chattel mortgage.

    In an action brought to recover the value oí a stock of drugs in a store, originally the property oí one Hanson, alleged to have been taken from the jflaintiff’s possession and converted by the defendant, the defendant answered that, as sheriff, he had levied upon ana sold the goods under executions issued upon judgments against Hanson. The plaintiff claimed to have purchased the goods from Hanson some fifteen days before the levy, in payment of an indebtedness represented by notes of Hanson, secured by a chattel mortgage; that at the time of the purchase he took possession of the goods and surrendered the notes and chattel mortgage and his claims against Hanson, and received a bill of sale, And that, by the terms of the purchase, he was to proceed and sell the goods and retain therefrom the amount of Hanson’s indebtedness to him, and deposit the surplus, if any, in a bank to Hanson’s credit. The plaintiff gave evidence that Hanson’s indebtedness to him amounted to §1,494.95, and that the value of the goods was §1,780.84. The defendant conceded that the goods were worth $1,500. The evidence in the case was conflicting, and the jury rendered a verdict in favor of the plaintiff for §1,584.50.

      Held, that the verdict should not be disturbed, as the evidence warranted the jury in finding that the plaintiff was the owner of the property at the time of the levy and sale made by the defendant as sheriff, and that the purchase was made by the plaintiff in good faith for the purpose of paying to the plaintiff an honest debt held by him against Hanson;
    That the exclusion of questions put to Hanson, as a witness for the defendant, calling for his opinion as to whether he had managed his business well or otherwise, did not require an interference with the verdict.
    The defendant sought to justify the taking of the property under judgments and executions issued thereon against Hanson; the trial court ruled that the burden of establishing such defense rested upon the defendant.

      Held, that this was an affirmative defense, and the ruling was, therefore, correct.
    In the body of the charge to the jury, the court referred to witnesses who had given evidence tending to corroborate testimony given by Hanson on some branches of the case; at the close of the charge, the defendant made a general request, enumerating witnesses, that the court charge “that the testimony of Hanson as to the signing of the contracts and the transferring of the property to Hills (the plaintiff) from Hanson, was corroborated by the witnesses” named. The court declined “to chargethe proposition any further than he had charged it.”

      Held, that such refusal ivas proper; that the body of the charge had substantially and correctly informed the jury of the bearing of the testimony that had been given by the witnesses enumerated.
    The defendant’s counsel requested the court to charge “that a chattel mortgage upon the stock of goods in a business place where the goods are being sold from time to time by the mortgagor, is void as against creditors.” The court, in response, observed : “ It is possible that there are some circumstances under which a chattel mortgage may be rendered void, if it gives to the mortgagee the right to sell, or if the mortgagor sells, it may become void as to creditors. It depends upon the circumstances.” To this an exception was taken.

      Eeld, that the court committed no error which the exception presented.
    Appeal by the defendant, Charles W. White, from a judgment of the Supreme Court, entered in the office of the cleric of Schuyler county on the 23d day of March, 1891, upon a verdict in favor of the plaintiff, rendered at the Schuyler Circuit, and from an order made at Special Term, and entered in the same clerk’s office on the 11th day of December, 1892, denying the defendant’s motion for a new trial upon a ease and exceptions.
    The verdict recovered by the plaintiff was for the sum of $1,684.50.

      Youmcms, Moss & Knipp, for the appellant.

      M. M. Mead, for the respondent.
   Hardin, P. J.:

Plaintiff, in his complaint, alleges that on the 26th of Mai-ch, 1890, he “ was the owner, and in possession of a stock of drugs, chemicals * * * all contained in the store No. 2 in the Tracy block, so called, situate in the village of Havana.” He also alleges in his complaint, that on the 11th of March, 1890, he purchased the stock, the property aforesaid, of one John TI. Hanson, in payment of an indebtedness of $1,494.95, and that by the terms of the purchase he was to proceed to sell the property, and retain therefrom the said indebtedness of $1,494.95 ; and if there was any further sum realized above that indebtedness, and any expenses, the surplus was to be deposited to the credit of Hanson in the bank in Havana; and that in pursuance of the purchase the plaintiff surrendered to Hanson as a consideration of said sale several promissory notes of Hanson’s held by the plaintiff which, with the interest added, amounted to $1,494.95, that being the sum that Hanson justly owed the plaintiff. The plaintiff alleges that after the purchase he took immediate possession of said store and stock of goods; and the plaintiff alleges in his complaint that the value of the goods so taken was $1,180.84. He further alleges that on the 26th of March, 1890, the defendant “ unlawfully and ■wrongfully entered said store where this stock of goods then was, and unlawfully and wrongfully dispossessed the plaintiff, and took possession of said stock of goods aforesaid, and converted them to bis own use, and wholly deprived this plaintiff of the same. * * *” In the answer of the defendant several judgments against John IT. Hanson are set out, and an averment, that executions were issued thereon, and placed in the hands of th& sheriff, the defendant, and that in virtue thereof he made a levy upon the property;, and that in virtue of the levy and executions the defendant, the sheriff, sold the property referred to in the complaint. Upon the trial the plaintiff gave evidence that he was in possession of the property at the time of the levy, and gave evidence tending to support his title to the property; and that theretofore he had received from Hanson a chattel mortgage collateral to the notes and indebtedness of Hanson to him, and that pursuant to the purchase of the goods in satisfaction of the mortgage and indebtedness so held by the plaintiff against Hanson, he surrendered the notes and claims which he held against Hanson on the 10th of March or the next day, in pursuance of the purchase of the property made by him of Hanson. The plaintiff also gave evidence that he had taken from Hanson a bill of sale transferring the property in pursuance of the arrangement already stated. There was some dispute as to the circumstances attending the bill of sale, and as to its validity, and a conflict in the evidence relating thereto. There was the positive testimony of the plaintiff, to some extent corroborated, as to the essential facts to sustain the issue in behalf of the plaintiff. Hanson was called as a witness, and in many particulars disputed the testimony given by the plaintiff ; and some other testimouy was given tending to support the position taken by Hanson in respect to the bill of sale. It appeared, however, upon all the evidence, that the plaintiff was in possession of the property at the time the levy was made, claiming to be the owner thereof; and after considering all the evidence that relates to the question of ownership we are of the opinion that the court was authorized to submit the question to the jury as to whether at the time of the levy the plaintiff was the owner and in possession of the property as such; and also whether Hanson had any title, interest or ownership in the property at the time the levy was made by the sheriff. Upon the conflicting evidence we are not inclined to disturb the verdict rendered by the jury, finding in effect that the plaintiff was the owner of the property at the time the levy and sale were made by the defendant, as sheriff. Upon the trial “it was conceded by the defendant for the purposes of the trial that the value of the goods taken and sold by the sheriff was $1,500.” Defendant’s position upon the trial, as presented by his answer and by the evidence, was that the levy was justified inasmuch as the property at the time of the levy, was the property of Hanson, the judgment debtor. Upon the evidence it was a question of fact for the jury to determine whether the plaintiff was in possession of the property at the time of the levy; whether there was any fraud in the mortgage which he held upon the property; whether he had an actual indebtedness against Hanson which was the basis of his purchase of the property from Hanson, and whether the purchase was made in good faith without any intent to defraud creditors. (Nichols v. Mead, 2 Lans. 226.) Upon looking into the charge we find these questions of fact were fairly presented to the jury, and upon the evidence the jury were warranted in finding that the purchase was made by the plaintiff in good faith for the purpose of paying to the plaintiff an honest debt held by him against Hanson. (Dudley v. Danforth, 61 N. Y. 626.)

(2) It is claimed that the court erroneously refused to allow the witness Hanson to answer the question: “You handled this stock in a proper manner, did you?” also the question, “You managed that business in the way most likely to produce the best results for a profit ? ” And in excluding an offer “ to show by this witness the amount of money that was actually put in the goods in the business.” The witness had already been permitted to state that “ The goods I bought were in value altogether about $1,800; ” and it was not a question for an opinion by the witness whether he had managed the business well or otherwise, and the rulings referred to and the exceptions thereto do not require an interference with the verdict.

(3) Defendant sought to justify the taking of the property under the judgments and executions issued thereon against Hanson. That was an affirmative defense, and we are of the opinion that the court committed no error in saying tliat the burden of establishing that defense rested upon the defendant.

(4) In the body of the charge the court had referred to witnesses who had been upon the stand and gave evidence tending to corroborate the testimony given by Hanson on some brandies of the case, and at the close of the charge a general request was made, enumerating witnesses, that the court charge that That the testimony of Hanson as to the signing of the contracts and transferring the proji-erty to Hills from Hanson was corroborated by the witnesses” named. In response thereto the. court observed that it declined to charge the proposition any further than he had charged it; ” to which refusal the defendant’s counsel duly excepted. We think the exception presents no error, and that the body of the charge had substantially and correctly informed the jury of the bearing of the testimony that had been given by the witnesses enumerated.

(5) The defendant’s counsel requested the court to charge That a chattel mortgage upon the stock of goods in a business place where the goods are, being sold from time to time by the mortgagor, is void as against creditors.” In response thereto the court observed: “ It is possible that there are some circumstances under which a chattel mortgage may be rendered void if it gives to the mortgagee the right to sell or if the mortgagor sells it may become void as to creditors. It depends upon the circumstances.” An exception was taken thereto. We think the court committed no error which the exception presents. (Cook v. Bennett, 60 Hun, 8, and cases there referred to in the opinion.) We have looked at the other exceptions to which our attention has been called, and are of the opinion that none of them require us to disturb the verdict.

MeRwiN, J., concurred; ParKee, J., not sitting.

Judgment and order affirmed, with costs.


text:
    Alexander Reichert, Respondent v. John Backenstross, Appellant.

      Flooding of farm land — loss of its use for the year’s crop — measure of damages.

    In an action brought to recover the damages resulting from the defendant’s wrongful act in flooding the plaintiff’s farm lot by opening a ditch and letting in the water therefrom, in the spring, by reason of which the land was rendered incapable of producing that year’s crop for which it had been fitted, the plaintiff was permitted to testify what the land would be worth if the water had not been turned onto it.

      Held, that a recovery based upon such a valuation was erroneous, and that the measure of damages should be limited to the fair value, as established by the evidence in the case, of the use for the year in question of the land actually flooded, which was lost to the plaintiff by reason of the flooding thereof, together with the cost of closing the ditch.
    Appeal by the defendant, John Backenstross, from a judgment of the County Court of Onondaga county, entered in the office of the clerk of that county on the 26th day of May, 1892, affirming a judgment of a justice of the peace in favor of the plaintiff rendered upon the verdict of a jury for seventy-five dollars damages.

      D. F. MoLemicm, for the appellant.

      William, Keovnedy, for the respondent.
   Hardin, P. J.:

Plaintiff’s ten-acre lot was in part flooded by the wrongful acts of the defendant in opening a ditch and letting the water therefrom onto the lands of the plaintiff. There was ample evidence to sustain the allegations in the complaint as to the wrongful acts of the defendant, and plaintiff’s cause of action was amply supported by evidence given before the jury. After a careful inspection of the evidence it is difficult to discover proof indicative that more than four acres of the plaintiff’s ten-acre lot were flooded. Charles Reichert, a son of the plaintiff, was sworn in his behalf and testified, viz.: “ The water was let in onto the oat field and flooded about half of the lot.” Again he says: “ There was probably a third of the ten acres covered with water.”

(2) "When the plaintiff was upon the stand as a witness he was allowed to testify, viz.: “ If land bad not bad tbe water turned onto it, it would be worth $11 or $15 an acre. I séeded it and sowed it. It would not be wortli enough to pay for the labor, with the water turned on through the ditches.” The appeal book states, viz. : “ The above testimony was received under the defendant’s objection to each and every part thereof duly taken as incompetent, irrelevant and immaterial, and not the proper rule or measure of damages.” Thereafter, in the course of the cross-examination of the plaintiff, he stated : “ The rental value of land is five or six dollars an acre. This land is like the rest of the farm, worth no more per acre.” Anthony Ball was called by the plaintiff and allowed to testify, against the objection-of the defendant, in answer to the following question: “ What would the rental value of this land be per acre after it was fitted for crops for the year 1890, provided it was dry and not flooded ?■” His answer was “ Nine dollars per acre; ” and then he was allowed to answer the following question: Assuming that the land was fitted on the 27th of April and was flooded, and flooded May 6th and 10th so as to be covered with water so a crop could not be sown until May 26th, 1890, what would be the rental value under those conditions ? ” The question was objected to and overruled,' and the witness answered, viz.: The land would not be worth anything. You cannot raise a crop of oats on the land which had been flooded, sowed at that time of the year. Oats should be sown in April, as early as you can get them in.” Lambert Barton testified in behalf of the plaintiff, viz.: “ The rental value of this land after being fitted would be worth $9 per acre.” Then the following question was put to him: Assuming this land was flooded April 27th, May 6th and 10th, what would be the rental value? ” Against the defendant’s objection he was allowed to answer, and said: “ The part that was flooded would not be worth anything. This land is loam with clay subsoil. Flooding of such land makes it hard and unfit for taking the seed. It will dry and crack. Oats should be sown in April. Oats sown after May 20th would be a failure.” The witness John testified that it was worth to fill up the ditches each time a dollar.

In Easterbrook v. Erie Railway Co. (51 Barb. 94), an action was brought for injuries done to the plaintiff’s premises by water, in consequence of a diversion of a stream from its channel by the defendants in constructing a culvert; and in that case Smith, J., said : “ The measure of damages in that class of cases is the depreciation in the value of the plaintiff’s premises occasioned by the injury resulting from the defendants’ acts.” '

In Chase v. The New York Central Railroad Co. (24 Barb. 273), which was an action brought to recover damages for injuries done to plaintiff’s grounds by water alleged to have been turned onto the plaintiff’s land, it was said: “ It is proper to charge the jury that the rule of damages, in that class of cases, is the difference between the value of the plaintiff’s premises before the injury happened, and the value immediately after the injury, taking into the account only the damages which have resulted from the defendant’s acts.”

In Argotsinger v. Vines (82 N. Y. 309), which was an action for trespass for cutting and removing timber, it was held: “ That evidence was properly received as to the value of the farm with the timber, and its value after it was cut; and that this difference furnished a proper measure of damages.”

In section 937 of Sedgwick on Damages it is said: “ In estimating the value of the crop the prevailing rule seems to be to take its actual value at the time of trespass, not its probable value, assuming it would have matured.” (8th ed., vol. 3, p. 50.)

If it be assumed upon all the evidence that a fair value cf the use of the land for the year 1890, which was lost to the plaintiff by reason of the flooding thereof, amounted to nine dollars per acre, then the evidence that indicates that not more than five acres at most were flooded would give as a result of that item, estimated in that mode, forty-five dollars; if to that be added a dollar each time the ditch was filled up, say three times, the damages would be apparently forty-eight dollars. It is quite apparent that by reason of the rulings conxplained of the verdict was excessive. Upon the argument before us the learned counsel for the plaintiff admitted the force of the foregoing view of the case and proffered a stipulation to reduce the damages.

In section 3063 of the Code of Civil Procedure it is provided that “the appellate court must render judgment according to justice of the case, without regard to technical errors or defects, which do not affect the merits. It may affirm or reverse the judgment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact; ” and in section 3066 a rule for tlie award of costs is regulated, and in tbe fifth subdivision of that section it is provided “ if the judgment is affirmed only in part, the costs, or such a part thereof as to the appellate court seems just, not exceeding ten dollars, besides disbursements, may be awarded to either party.”

Under all the circumstances of the case'* it seems reasonable to modify the judgment of the County Court and of the Justice’s Court, so that there shall be awarded a recovery of only forty-eight dollars damages to the plaintiff, with ten dollars costs and disbursements in the County Court.

Merwin and Parker, JJ., concurred.

Judgment of the County Court modified as stated in the opinion, and as so modified affirmed, without costs of the appeal to either party.


text:
    Cassia A. Jones, Appellant, v. Richard E. Jones, Respondent.

      Power of the court to vacate a judgment obtained by fraud — divorce — annulment of a marriage, on the ground that a prior marriage between the plaintiff and a third party was in force, by way of affirmative relief to the defendant — laches.

    The power of the Supremo Court to annul or set aside a judgment for fraudulent practices in obtaining it is undoubted.
    The fraud or accident which will authorize interference with judgments must be unmixed with negligence on the part of the moving party.
    The proof must be clear and satisfactory to induce the court to interfere with a regular judgment alleged to have been fraudulently obtained; it is not sufficient merely to raise a suspicion or to show constructive fraud, but there must be proof of actual fraud.
    In an action for divorce on the ground of adultery, brought by a wile against her husband in the Supreme Court, judgment was regularly entered on the confirmation of the report of a referee, to whom the case had been referred to hear and determine, dismissing the complaint and giving the defendant the affirmative relief demanded in his answer, by declaring the marriage contract between the parties to be null and void, for the reason that the plaintiff had a lawful husband living at the time of such marriage. Fourteen months after notice of this judgment, the plaintiff moved at Special Term to set aside the judgment; on papers alleging collusion and fraud on the part of her attorney-in conducting the case. The motion was denied.

      Held, that the Special Term was justified, under the rules above stated, in finding that no fraud was practiced upon the plaintiff by her attorney or any other person connected with the trial before the referee, or on the motion to confirm the report, or in procuring the judgment;
    That the Special Term had no power, in hearing the motion for a vacation of the judgment, to reverse or add to or subtract from the decision of the referee; to obtain such a result, the remedy was by appeal where the decision of the referee could be reviewed.

      Semble, that the parties were bound by the judgment entered and not appealed from, since the referee and the court confirming his report had jurisdiction of the person and of the subject-matter, and the answer interposed by the defendant contained allegations sufficient to bring the subject-matter within the provisions of section 1743 of the Code of Civil Procedure, which authorizes an action to be maintained to procure a judgment declaring a marriage contract void and annulling the marriage, on the ground -that the former husband or wife of one of the parties was living at the time of such marriage, and that the marriage with the former husband or wife was then in force.

      Held, also, that the plaintiff was chargeable with laches and neglect in not moving to set aside the judgment until fourteen months after notice thereof, and that the Special Term wras warranted in taking into consideration such laches and neglect in disposing of her motion.
    Appeal by the plaintiff, Cassia A. Jones, from an order of the Onondaga Special Term, made on the 5th day of April, 1890, and entered in the office of the clerk of Madison county on the 9th day of April, 1890, denying a motion made by the plaintiff “to open, vacate and set aside the judgment in this action, entered in the clerk’s office of the county of Madison on the lltli day of May, 1888.”
    Plaintiff, in her complaint, alleged that on the 3d day of September, 1865, at Hastings, Barry county, Michigan-, she was. married to the defendant, and that they lived as man and wife until some two years previous to the commencement of this action; and in her complaint stated numerous alleged acts of adultery committed by the defendant, without her consent, connivance or privity. An answer was served by the defendant on the 28th of September, 1887, which denied all the allegations of the complaint except that “ the defendant admits that on the 3d day of September, 1865, at Hastings, Barry county, Michigan, the plaintiff was in form married to the defendant; said marriage, the defendant avers, on information and belief, was illegal and void, as set forth in the second answer herein and he also admitted that he was a member of the firm, as stated in the complaint; and he also admitted “that the issue of said alleged marriage of the plaintiff and defendant was one child named Minnie A., now about twenty years of ageand then the answer proceeded to set up an independent defense, viz.: “For a separate and further answer to said plaintiff’s complaint, under which this defendant asks for affirmative relief, the defendant avers, on information and belief, that on or about the 11th day of January, 1862, at the county of Barry and State of Michigan, the plaintiff herein was lawfully married to one John C. Birdzell, and lived and cohabited with him as his wife; that at the time of the alleged marriage of the plaintiff with the defendant, to wit, the 3d day of September, 1865, the said John C. Bird-zell was alive, and deponent is informed and believes, and, therefore, charges the fact to be, she, the plaintiff herein, -was the lawful wife of said John C. Birdzell, all of which was unknown to the defendant at the time of his said marriage to the plaintiff. Wherefore, the defendant demands judgment that the plaintiff’s complaint in this action be dismissed with costs, and that a decree be granted herein by this court declaring the marriage of the defendant with the plaintiff on the 3d day of September, 1865, as alleged in the plaintiff’s complaint, null and void.” October 5, 1887, the plaintiff served a reply, denying all the allegations of “ the second count of defendant’s answer.” On the 22d of October, 1887, at a Special Term held in Onondaga county, “ oil reading aLid filing the pleadings in this action, also the stipulatioxi of the attorneys herein., axxd coLisent of the parties in opexi court, (it was) ordered that the issues joined in this action be referred to Delmer T. Willis, Esq., of Can-astota, an attorney of this court, to try axxd determine.”
    The first hearing before the referee was oxx the 2d of November, 1887, axxd oil that day the plaintiff ixx person and the defendant ixx person, with their respective attorneys, appeared before the referee, and the plaintiff asked for axx adjournment, which was had, to the 15th of December, 1887, oil which day they appeared axxd a further adjournment was had to January 3, 1888, on which occasioxx the parties in person and with their coxxnsel appeared before the referee, and the attox-ney for the plaintiff stated “that he has carefully examined and ixxvestigated the case, and can find no evidence to establish the fact of the adultery of the defendant, and that he has no evidence to offer on that question.” Thereupon the plaintiff rested and the defendant was sworn as a witness and denied the acts of adultery alleged in the plaintiff’s complaint, and also testified, viz.: “ At the time of the marriage ceremony between the plaintiff and myself I did not know that the plaintiff had another husband living.” The defendant also put in evidence testimony taken on commission in the State of Michigan.
    On the 10th of October, 1881, an order for an open commission was filed in the clerk’s office in Madison county, naming Clement Smith as commissioner, and on the eleventh of October, when the parties appeared in the city of Hastings they ascertained that the commissioner was out of town, and they entered into a stipulation naming another commissioner before whom the evidence was taken, and in pursuance thereof it was returned and filed in the Madison county clerk’s office October 11, 1881.

      At the close of the evidence the case was submitted to the referee, who, on the 20th of February, 1888, made his report wherein he found as matter of fact: 1. “ That at the time of the commencement of this action the plaintiff and defendant were, and now are, residents of Madison county.” 2. “ That on the 3d day of September, 1865, at Hastings, Barry county, and State of Michigan, the plaintiff was in form married to the defendant.” 3. “ That the issue of said marriage was one child, a daughter named Minnie A. Jones, now about twenty years old.” 4. “ That on or about the 11th day of January, 1862, at the county of Barry, and State of Michigan, the plaintiff herein was lawfully married to one John 0. Birdzell, by Charles II. Stone, Esq., a justice of the peace of said county, and that said John 0. Birdzell was living on the 3d day of September, 1865, the time when the parties to this action were married, and was then the lawful husband of the plaintiff herein, which facts were unknown to the defendant herein until on or about the time of the commencement of this action, and that the marriage of the defendant to the plaintiff was contracted on the part of the defendant in good faith.” 5. “ That the defendant is not guilty of any of the acts of adultery charged in the complaint.”
    As matters of law the referee reported: 1. “ That the plaintiff is not entitled to the relief demanded in the complaint.” 2. “ That the marriage of the plaintiff and defendant was absolutely null and void, the plaintiff having a lawful husband living at the time of such marriage.” 3. “ That the issue of said marriage of the plaintiff with the defendant, Minnie A. Jones, is the legitimate child of the defendant herein and that the defendant is entitled to the care, custody and control of said child.” 4. “ That the defendant herein is entitled to a decree in this action dismissing the plaintiff’s complaint, with costs, and to the affirmative relief demanded in his answer declaring said marriage contract between the plaintiff and defendant null and void.” The referee’s report and the evidence taken by him, in pursuance of a notice bearing date the 10th of April, 1888, were presented at a Special Term held on the 28th of April, 1888, in Onondaga county, and a judgment was ordered in accordance with the referee’s report, the order for the judgment being signed by Kennedy, J., who presided at the said Special Term. The pleadings and the order with the said proposed judgment were filed May eleventh in the clerk’s office of Madison county, and the judgment, in accordance with the referee’s report, and of the order so made at Special Term, was entered, and notice of the judgment was, within a few days, given to the plaintiff’s attorney.
    Upon, an affidavit, verified by the plaintiff on the 10th day of July, 1889, with other affidavits and papers, a motion was made to set aside the judgment, and Apon numerous affidavits and papers in opposition thereto enumerated in the order made, and after consideration by the court of the papers for and against the motion, an order denying the motion was made, which is brought up for review.

      C. A. Hitchcock, for the appellant.

      George W. Ray, for the respondent.
   Hardin, P. J.:

So far as the moving papers contain allegations of collusion, fraud or corruption on the part of the attorney of the plaintiff in conducting the proceedings, they are fully met by contradictions, explanations and affirmative statements found in the opposing affidavits and papers. The power of this court to annul a judgment, or set aside one for fraudulent practices in obtaining the same, is undoubted, (Smith v. Nelson, 62 N. Y. 288.)

In Ross v. Wood (70 N. Y. 8), it was held: That the fraud or accident which will authorize interference with judgments must be umnixed with negligence on the pax-t of the movixig party. And in Mayor v. Brady (115 N. Y. 616), it is said that it is incumbent upon a moving paxfy to show that he was deprived of his rights “ by fraud or accident unmixed with negligence of himself or his agents.” And in Ward v. The Town of Southfield (102 N. Y. 293), it was said that the proof must be clear and satisfactory to induce the court to interfere with the judgment alleged to have been fraudulently obtained, and also that “ The solemn judgment of the court should ixot be lightly interfered with. It is for the interest of the public, as well as of individuals, that there should be an end of litigation, and where parties have been lawfully brought into a court having jurisdiction of their persons and the subject of litigation, and have had an opportunity to prosecute their claims and to defend their rights, and judgment has been regularly pronounced, while such judgment is not vacated or reversed it concludes the parties thereto; ” and also that “ Before a regular judgment can be thus assailed the proof should be clear and very satisfactory. It is not sufficient merely to raise a suspicion or to show what is sometimes called constructive fraud, but there must be actual fraud.” . Applying the rules stated in the cases to which reference has been made to the proofs presented at the Special Term, we are of the opinion that it was justified in finding that no fraud was practiced upon the plaintiff by her attorney, or any other person connected with the trial before the refex-ee, or on the motion to confirm the report, or in procuring the judgment which was entered dismissing her complaint, and awarding the affirmative relief given to her by the findings of the referee, and sanctioned by the order of confirmation. We think we ought not to overturn the findings of the Special Term upon the proofs and papers found in the appeal book before us.

(2) The Special Term had no power, in hearing the motion now before us, to reverse, or add to or subtract from the decisioix made by the referee. (McLean v. Stewart, 14 Hun, 472; approved in Rockwell v. Carpenter, 25 id. 532.) To obtain such a result the party’s remedy was by appeal, where the decision of the referee could be reviewed.

(3) Doubtless the referee and the counsel engaged in the trial before him were influenced by the decision and opinion in Finn v. Finn (62 How. 83), in which case it was held “ that a marriage contract entered into by a person having a husband or wife living, with a third person, is utterly voidand, also, that the evidence of the former marriage was competent in the case, and it being established, is a defense to the action; and that under section 501 of the Code of Civil Procedure, in an action for divorce a vimeulo, a defendant may have affirmative relief.” It is not needful for the purposes of the decision of the appeal now before us to determine whether such relief could have been obtained had objection been taken thereto upon the trial before the referee; nor to determine that in case he had overruled such objections, and an appeal had been taken from his decision, that his rulings would have been sustained in that regard; nor is it needful to determine whether section 1770 of the Code of Civil Procedure is restrictive and prohibitive as to the “ cause of action against the plaintiff and in favor of the defendant” which may be set up in an action for divorce. (Mackeller v. Rogers, 109 N. Y. 472.) Section 1743 of the Code expressly authorizes an action to be maintained to procure a judgment declaring a marriage contract void and annulling the marriage on the ground “ that the former husband or wife of one of the parties was living, ar.d that the marriage with the former husband or wife was then in force.” That section confers upon the court power to annul a marriage for the cause stated. In the case before us the referee, and the court confirming his report, had jurisdiction of the person and the subject-matter of the action ; and the answer interposed by the defendant contained allegations sufficient to bring the subject-matter within the provisions of section 1743 of the Code.

In Hunt v. Hunt (72 N. Y. 228), it is said: “ Power given by law to a court, to adjudge divorces from the ties of matrimony, does give jurisdiction of the subject-matter of divorce. Though the proceedings before that court from first to last of the testimony, in an application for divorce, should show that a state of facts does not exist which makes a legal cause for' divorce, yet it cannot be said that the court has not jurisdiction of the subject-matter, that it has not power to entertain the proceeding, to hear the proofs and allegations, and to determine upon their sufficiency and legal effect.” (Prior v. Prior, 15 N. Y. Civ. Proc. Pep. 436 ; Cromwell v. Hull, 97 N. Y. 209 ; Reed v. Reed, 107 id. 548.) In tlie last case it was said: “The court in the present instance had jurisdiction of the parties and of the subject-matter of the action, and from the decision made no appeal was taken. All the parties, therefore, are bound.” (Rima v. R. I. Works, 120 N. Y. 438 ; Blanc v. Blanc, 51 N. Y. St. Repr. 822.)

(4) When the referee’s report and the order approving the same and directing judgment in accordance therewith (inasmuch as the reference was to hear and determine) were filed with the.clerk of Madison county, he was authorized to enter a judgment without the same being signed by the judge who had directed the same. (Code Civ. Proc. § 1204.) Plaintiff having had notice of the judgment fourteen months before the notice of motion, is chargeable with laches and neglect, and the Special Term was warranted in taking into consideration such laches and neglect in disposing of the motion made by her to set aside the judgment. (Mattern v. Sage, 3 N. Y. Supp. 120.) The foregoing views lead to an approval of the decision of the learned judge at the Special Term.

Merwin and Parker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    Mary Ann Thuringer, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Dangerous condition of a sidewalk, mused by the adjacent owner — liability for personal injm'y — ice formed on a sidewalk from a railroad water tank — negligence— damages for the loss of a married woman’s household services.

    An owner of premises adjacent to a city street who, without authority, interferes with a sidewalk for his private purposes' and fails to restore it to a safe condition, is liable to anyone who sustains injury thereby.
    A woman having been injured by falling on ice upon the sidewalk of a city street, adjacent to the premises of a railroad company, in front of the spout of a railroad -water tank, brought an action for the recovery of damages against the company, alleging that the injury was caused by the defendant’s negligence in permitting water to drip upon the sidewalk from the tank and locomotives, and to remain there until it froze. Evidence was given by the plaintiff that in walking on the sidewalk she fell on the ice in front of the w'ater tank; that the ice extended over tlie whole sidewalk and was underneath the spout and around the standard. Other witnesses testified as to the condition of the sidewalk and the manner in which the water column was used and the effect of the drip, and that the action of the wind at times carried the water sideways from the mouth of the column.

      Held, that there was no error, upon the facts in evidence, in submitting the question of the defendant’s negligence to the jury.
    The services of a wife in the household still belong to her husband, and so far as an in j ury to her disables her from performing such services the loss is his, and he, not she, can recover therefor.
    In the present action, brought by a woman to recover damages because of her personal injury, it appeared that the plaintiff had been married, but that her husband had not lived with her for the last twelve years; there was no proof of the husband’s death or that the plaintiff had not heard from him during their separation, or where he was, or that he had not assisted her, or that there had been a dissolution of the marriage relation or an arrangement that she should have her earnings separate and independent of any claim by him ; but the plaintiff testified that during the time mentioned she had worked out and earned money by cleaning and washing, and that she had had all her earnings for her own support and maintenance.

      Held, that, under the facts disclosed, the trial court erred in refusing a request by the defendant to charge that the husband had a right of action against the defendant for all loss of household services occasioned by the injury, if anyone was entitled to recover for the accident.
    • Aureal by the defendant, tbe New York Central and Hudson River Railroad Company, from a judgment of tlie Supreme Court, entered in tlie office of tlie clerk of Oneida county on the 19th day of October, 1892, upon a verdict for $1,000 in favor of the plaintiff rendered at the Oneida Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover the damages resulting from the defendant’s alleged negligence. The complaint alleges that “ The said defendant wrongfully and unlawfully and negligently permitted and allowed water to flow and escape from the water pipe, tank and its locomotives * * * and from the premises of defendant on the sidewalk of said James street in the city of Rome, the same being a public street, and wrongfully and unlawfully and negligently permitted the same to remain and ,to continue to flow and escape onto said sidewalk until a large accmnulation of said water on said sidewalk froze and became icy and slippery and dangerous to the public and people traveling on said walk and street, and wrongfully and negligently neglected to remove said tank and accumulation of ice caused as aforesaid after it had knowledge that it was dangerous aud * * * the said plaintiff on or about January 10th, 1892, while walking on said sidewalk without any cause or fault of hers slipjied and fell, thereby seriously and permanently injuring her and making her sick and sore and unable to attend to her business.” The answer denied the allegation of the complaint and alleged that the injury set forth in the complaint “ was the result of the carelessness, negligence and want of proper caution on the part of the plaintiff and not otherwise.”

      G. D. Prescott, for the appellant.

      McMahon d> Gurtin, for the respondent.
   Hardin, P. J.:

On the lOtli of January, 1892, the plaintiff resided in the Hager block on James street in the city of Rome, and had occasion to visit Antmann’s south of the railroad; about nine o’clock, in company with her son, a boy some fourteen years old, she started to return to her residence, passing along the sidewalk' on the westerly side of James street towards the defendant’s road, near its water tank; and she testifies: “ My both feet went out from under me, and I went down in a heap; I tried to get up, and I couldn’t. I fell again, and I discovered ice under my hand, and I looked up and saw the water spout while I was lying there; my boy came then and tried to get me up, and I couldn’t stand on my feet. As I fell I struck on my left hip — sat down on it — right on my left side; my left side was towards the left side of the sidewalk as I came up; I fell with my whole side down, over on my left elbow; I tried to get the first time on my knees and couldn’t get any further, and I fell down again because I was so sick, because I felt sick to my stomach and everything whirled around me. I noticed the water column when I tried to get up the second time.” Prank, her son, who was with her on the occasion when she fell, testifies: “ When she fell she was about three feet from track No. 1; she was right opposite the spout when she fell; she fell right over on the left side towards the spout; I noticed the condition of the sidewalk in front of that spout at that time — it was very icy j the ice extended over the whole sidewalk, and was underneath the spout and around the standard, and it extended all through track No. 1 to the walk over track No. 1.” Other witnesses were called who testified as to the condition of the sidewalk; testified as to the manner in which the water column was used, and the effect caused by the drip, and that the action of the wind carried the water sideways from the mouth of the column at times. Upon the whole evidence relating to the subject we are of' the opinion that it was a question of fact whether the defendant was guilty of negligence, and whether the negligence of the defendant caused or contributed to the injuries which the plaintiff received.

At the same point where this accident occurred another injury was caused to a person passing along the sidewalk, which lead to an action, and the trial thereof was brought into this court for review, and our opinion delivered in that' case is found in 49 N. Y. St. Repr. 566, McGoldrick against this defendant. In that case, in the course of the opinion delivered in behalf of the court, it was said: Whether the intestate fell by reason of any wrongful act or neglect of the defendant was, upon the evidence, a question of fact. The defendant claims that there is no basis for a recovery, because the obstruction was upon a sidewalk, and the city, therefore, only liable. It has, however, been held that an owner of adjacent premises who, without authority, interferes with a sidewalk for his private purposes, and fails to restore it to a safe condition, is liable to anyone sustaining injury thereby.” Applying the doctrine found in the opinion from which the quotation has been made, we think there was no error upon the facts before the court in submitting the question of the defendant’s negligence to the jury.

(2) The trial judge, in dealing with the question of whether the plaintiff was guilty of contributory negligence, said: She was walking in a public street, upon that part of it, the sidewalk, prepared especially for foot passengers, and is for you to say whether she was guilty of negligence or not in walking along there without looking to see whether there was any danger * * * if you find that she was guilty of negligence, and that her negligence contributed to the injury which she sustained, then she cannot recover, even if the defendant was guilty of negligence.” "We think the tidal judge was warranted by the evidence relating to the question of her freedom from contributory negligence in submitting it to the jury, and that tlie charge was as favorable as the defendant was entitled to have delivered upon that subject.

(3) In the course of the charge, upon the subject of damages, the judge said : “ You can allow her for her loss of time, for her suffering and for the pain that she has sustained. * * * ” At the close of the charge the defendant’s counsel requested the court “ to charge that the plaintiff is not entitled to recover in this action for any loss of time which she applied to her household service or services; ” in respose to that request the court observed: “ Of course that would be so if she was living with her husband. I decline to charge that.” The defendant took an exception, and requested the court “ to charge that the husband has a right of action against the defendant for all loss of household services occasioned by this accident, if anyone is entitled to recover for the accident.” In response thereto the court observed: I decline to charge that as applicable to this case; ” and the defendant took an exception thereto. It appeared in the evidence that the plaintiff was a woman some fifty-six years of age; that she had had several children, and she testified that she had lived in Rome twenty-three years; and also “ my husband is not living with me,” and that it was about twelve years since he had lived with her. There was no proof of his death ; there was no proof that she had not heard from him during the period of time covered by the separation from him, or where he was, or that he had not assisted her, nor was there any proof that there had been a dissolution of the marriage relation or an agreement that she should have her earnings separate and independent of any claim by him. She did testify, however, that during the time she had mentioned she had “ worked out and earned money by cleaning and washing. All the earnings I have, I have had for my own support and maintenance since that time. Prior to the tenth day of January and for a number of years, or since the time my husband left me, I have been working out by the day and taking in washing.”

In Filer v. The N. Y. C. & H. R. R. R. Co. (49 N. Y. 56), which was an action by a married woman for injuries sustained, Allen, J., said : Her services and earnings belonged to her husband ; and for loss of such services, caused by the accident, he may have an action.”

In Brooks v. Schwerin, (54 N. Y. 348), it was held: “ The services of the wife in the household still belong to her husband, and so far as an injury to her disables her from performing such services the loss is his, and he, not she, can recover therefor.” That case was cited in Coleman v. Burr (25 Hun, 242), in an opinion delivered for this court, approvingly; and the opinion stated and so far as an injury to her disables her from performing such services the loss is his, and he, and not she, can recover therefor.” Our decision in that case was affirmed in 93 N. Y. 17. These and other cases were referred to in the opinion delivered in Blaechinska v. H. Mission & Home (130 N. Y. 503), and near the close of the opinion it is said, viz.: “ Applying the law, as we gather it from the statute and the manifold decisions, to the facts of this case, as now laid before ns, we think that the plaintiff is entitled to recover actual damages only, and that the consequential damages for the loss of her services, both in the house and in the shop, should be recovered by her husband in a separate action brought in his own name. The damages for the injury to her person belong to her, because the statute has given them to her, but the damages for the loss of her services belong to him, because the common law gave them to him and the statute has not taken them away.” Applying the doctrine of the cases to which reference has been madej we are of the opinion, under the facts disclosed in this case, the learned trial judge ought to have yielded to the request to charge “ that the husband has a right of action against the defendant for all loss of household services occasioned by this accident, if anyone is entitled to recover for the accident.” For the error presented by an exception taken to the refusal to charge as requested, we think a new trial must be ordered.

Mebwin and Parker, JJ., concurred.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.