tempting to descend caught her foot in the loose ropes of the matting and was thrown violently upon the stairs and received the injuries complained of. Evidence was given on the part of the defendant tending to controvert the plaintiff's testimony as to the place of her fall and the degree of care exercised by her, the condition of the hallway and matting, and also as to light and safety. The jury found the controverted questions in favor of the plaintiff. The contention of the appellant is that the court erred in charg ing the jury in the following particulars: The plaintiff's counsel asked the court to charge the jury in respect to the matting (which was not produced) that if the jury were satisfied that it was within the power of the defendant to produce it in substantially the condition it was at the time, and omitted to do so, a similar rule applies as in the case of an omission to produce a witness a party has power to produce. The court declined so to charge, but said, "I charge that that is simply a circumstance in the case which the jury may give such weight to as it is entitled to receive." The plaintiff also requested the court to charge that if it is in the power of one of the parties to produce evidence in this case and the party fails to produce it, it is a matter the jury may give such weight as they may see fit. The court declined to vary the charge upon that subject. The defendant's counsel did not except to the above rulings. The defendant's counsel asked the court to charge that if the matting remained in constant use for about two years after the accident and was then taken up and nailed down on the defendant's veranda and used since, his omission to produce it could not be taken in consideration in this case. The court in reply stated that, "they take that in connection with the suggestion in regard to its not being produced; the jury will consider all the circumstances; they may say how far the circumstance that it remained on the stairs some time after the accident operated as a reason why it should not be brought into court as an exhibit in the case." The defendant's counsel excepted to the refusal of the court to charge as requested. The charge of the court in response to the plaintiff's request shows the manner in which the question arose. The charge was that the jury might as a circumstance attach such weight to the omission to produce the matting as it was entitled to receive. The defendant was content with this, as no exception was taken. The defendant's request, above quoted, assumes as matter of law that if the matting remained in constant use for about two years after the accident, and was then taken up and nailed down and used since, the omission to produce it could not be taken into consideration. It is easy to see that the length of time and manner the matting was used after the accident might so change its condition as to render an inspection worthless for the purpose of showing the state it was in when the accident occurred. On the other hand, notwithstanding the defects to which the accident is charged, they might be discovered with more or less distinctness on inspection after long use. The court could not say, as matter of law, what changes such time and use would produce. In the very nature of things, the changes which time and use had brought about involve questions of fact. The court, therefore, very properly said that such use and time might be taken into consideration by the jury; but the learned justice was right in refusing to rule, as matter of law, that those circumstances were so controlling that the non-production of the matting could not be considered. The matting was in possession of the defendant, and it was admissible as evidence before the jury. The People v. Gonzalez, 35 N. Y., 49; King v. N. Y. C. & H. R. R. R. Co., 72 id., 607. The evidence on the trial shows that there was a conflict as to the condition of the matting, in reference to which the jury were authorized to draw different inferences. An omission on the part of the person having possession and control of the matting to produce it would be a circumstance which the jury would have a right to take into consideration against him. Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; 2 N. Y. State Rep., 249; Bleecker v. Johnston, 69 N. Y., 309; The Fred. M. Laurence, 13 Fed. Rep., 635; The People v. Hovey, 92 N. Y., 554. The trial justice was not in error in charging as he did in response to the plaintiff's request. As above stated, the correctness of his charge on this subject was acquiesced in by the learned counsel for the defendant, whose sole contention is narrowed down to the question as to whether, as matter of law, it was the duty of the trial justice to direct the jury that time and use had destroyed all the value of the matting as an exhibit. No error was committed by the court in this respect. No other question being urged by the learned counsel for the appellant, or being presented by the case, the order and judgment must be affirmed. DWIGHT, P. J., concurs; MACOMBER, J., dissents. MEMORANDA. Memorandum of decisions in which no opinions were filed. COURT OF APPEALS. Filed June 3, 1890. HENRY C. ADAMS, App'lt, v. OLIVER M. ARKENBURGH et al., Resp'ts. No papers. Motions to vacate order dismissing appeal and for re-argument denied, with costs. LAURIS TENDRUP, Resp't, v. THE JOHN STEPHENSON Co., App'lt. J. Edward Swanstrom, for resp't; John Notman, for app'lt. Judgment affirmed, with costs. All concur, except EARL, J., dissenting, and GRAY, J., absent. Affirming 21 N. Y. State Rep., 487. In re APPLICATION OF THE CITY OF ROCHESTER TO ACQUIRE RIGHT TO DRAW WATER, ETC. Theo. Bacon, for app'lt; Wm. F. Cogswell, for resp't. Appeal dismissed, with costs. All concur, except GRAY, J., absent. See 30 N. Y. State Rep., 1020. JOHN P WHITNEY et al., Resp'ts, v. THE HOP BITTERS Mfg. Co., App'lt. J. A. Stull, for resp'ts; Wm. F. Cogswell and J. Welling, for app'lt. BERNARD HUFNAGEL et al, App'lts, v. THE VILLAGE OF MT. VERNON, Resp't. Judgment affirmed, with costs. All concur, except Gray, J., absent. JESSE JONES, Resp't, v. THE BROOKLYN & W. E. BATH R. R. Co., App'lt. Judgment affirmed, with costs. All concur, except EARL, J., dissenting. Affirming 21 N. Y. State Rep., 169. THE PEOPLE ex rel. KATHERINE H. RICHMOND, App'lt, v. JOHN H. WILSON et al., Resp'ts. Jno. W. Weed, for app'lt; Edward E. Sprague, for resp'ts. Judgment affirmed, with costs. All concur, except GRAY, J., absent. WM. S. WETMORE, Resp't, v. JANETTE PIRSSON, App'lt. No papers. Judgment affirmed, with costs. All concur, except GRAY, J., absent. CHARLOTTE A. BALDWIN, App'lt, v. THE N. Y. C. & H. R. R. R. Co., Resp't. Judgment affirmed, with costs. All concur. Affirming 18 N. Y. State Rep., 958. SOLOMON SAYLES, Resp't, v. JAMES JOURDAN, App'lt. Elihu Root, for resp't; W. W. MacFarland, for app'lt. Judgment affirmed, with costs. All concur. Affirming 19 N. Y. State Rep., 349. Filed June 10, 1890. GEO. W. LAWTON et al., App'lts, v. Wм. N. STEELE, Resp't. No papers. Motion for citation granted. See 29 N. Y. State Rep., 581, 995. SAM'L N. BACON v. THE U. S. MUTUAL ACCIDENT ASS'N OF NEW YORK. No papers. Motion for substitution granted. See 20 N. Y. State Rep., 204. HARRIET BEAL, App'lt, v. THE N. Y. C. & H. R. R. R. Co., Resp't. C. W. White, for app'lt; C. D. Prescott, for resp't. Motion for re-argument denied; ten dollars costs. See 29 N. Y. State Rep., 991. WM. H. CROMWELL et al., Resp'ts, v. GEO. L. BURR, App'lt. Wm. J Lynch, for motion. Motion to dismiss granted, with costs. See 12 N. Y. State Rep., 132. SPENCER C PLATT et al., v. MARIA R. WITHINGTON et al. Edud. S. Clinch, for resp'ts. Motion for re-argument and amendment of remittitur on behalf of plaintiffs denied; ten dollars costs. SPENCER C. PLATT et al., v. MARIA R. WITHINGTON et al. Edud. S. Clinch, for resp'ts. Motion to amend remittitur on part of the defendant granted, and remittitur amended so as to allow Mrs. Withington costs in general term and this court. See 30 N. Y. State Rep., 629. GEO. W. DRISCOLL, Rec'r, App'lt, v. Wм. W. DOWNER et al., Resp'ts. M. M. Waters, for app'lt; M. M. White and John C. Hunt, for resp'ts. Motion to dismiss denied; ten dollars costs. See 29 N. Y. State Rep., 609. In ve THE NIAGARA FALLS & W. R R. Co. TO ACQUIRE LAND. Sprague, Morey, Sprague & Brownell, for app'lts; Ellsworth & Potter, for resp'ts. Motion for re argument denied: ten dollars costs. See 31 N. Y. State Rep. 47. Filed June 17, 1890. THE PEOPLE ex rel. WM. TUCKER, Resp't, v. JOHN ENNIS, Comr., etc., App'lt, Edud. F O'Dwyer, for resp't; Wm. T' Gilbert, for app'lt. Order affirmed, with costs, on opinion below. All concur. Affirming 27 N. Y. State Rep., 276. VALERIA P. TAYLOR, Resp't, v. FRANCIS A. TAYLOR, App'lt. Wm. A. Abbott, for resp't; C. P. Cowles, for app'lt. Appeal dismissed, with costs. All concur. See 28 N. Y. State Rep., 743. CHRISTIAN VON HESSE, Sole acting Ex'r, App'lt, v. MARIE LOUISA MACKAYE, Impl'd, etc., Resp't. Geo. H. Starr, for app'lt; Noah Daris, for resp't. Order affirmed, with costs, on opinions below. All concur. Affirming 29 N. Y. State Rep., 228, 233, 234. JNO. H. CONQUEST et al., App'lts, v. FRED'K E. BARNES, Impl'd, etc., Resp't M. D. Curtis, for app'lts; Howard Y. Stillman, for resp't. Appeal dismissed. with costs. All concur. See 21 N. Y. State Rep., 112. LUCIAN R. TERRY et al., appl's, v. HENRY BANGE, resp't. Edward Perkins, for app'lts; Wm C. Holbrook, for resp't. Appeal dismissed, with costs. See 30 N. Y. State Rep., 285. All concur. THE AUSABLE Co., Resp't, v. SETH HARGRAVES et al., App'lts. E. B. Hinsdale, for resp't; A. N. Weller, for app'lts. Judgment affirmed, with costs. All concur. Affirming 16 N. Y. State Rep., 318. Filed June 24, 1890. THE PEOPLE, Resp'ts, v. THE NORTH RIVER SUGAR REFINING CO., App'lt. Charles F. Tabor, attorney-general, and Roger A. Pryor, for resp'ts; John E. Parsons and James C. Carter, for app'lt. Appeal from order of general term, affirming order of special term, denying n part defendant's motion for stay of proceedings, dismissed, with costs. All concur. ELIZABETH J. WEBER, Resp't, v. JOHN N. LESTER et al., App'lts. No papers. Motions to dismiss denied, with ten dollars costs in each motion. THOS. F. MASON, App'lt, v. JUSTINE M. CRONK, Adm'rx, etc., Resp't. No papers. Motion to require respondent to receive copies of printed case granted upon payment by Mr. Moses to respondent of ten dollars costs of motion. See 28 N. Y. State Rep., 983. JONAS H. LANE et al., App'lts, v. CHAS. ROSENBERG et al., Resp'ts. M. W. Divine, for app'lts; Donohue, Newcombe & Cardozo, for resp ́ts. Judgment aflirmed, with costs. All concur. Affirming 24 J. & S., 603, mem. H. NELSON CURTICE, Resp't, v. AMASA B. WEST, App'lt. S D. Bentley, for resp't; II. L. Bennett, for app'lt. Judgment affirmed, with costs. All concur. Affirming 18 N. Y. State Rep., 511. ORLANDO BARRELLE, App'lt, v. THE PENNSYLVANIA R. R. Co. et al., Respt's LH. Northrup for app'lt; Osborne E. Bright, for resp'ts. Judgment affirmed, with costs. All concur. Affirming 21 N. Y. State Rep., 109. WILSON B. SHELDON, Resp't, v. THE WESTERN UNION TEL. Co., App'lt. Affirming 23 N. Y. State Rep., 837. EDWARD J. MACLEOD, Resp't, v. JOHN MALONEY et al, App'lts. Jno. E. & C. W. Pound, for resp't; E. M. Ashley, for app'lts. Judgment affirmed on opinion below, with costs. All concur. Affirming 20 N. Y. State Rep., 468. JACOB GRAMM, App'lt, v. THE VILLAGE OF GREENBUSH, Respt. Amasa J. Parker, for app'lt; James II. Ryan, for resp't. Appeal dismissed, with costs. See 20 N. Y. State Rep., 370. All concur. FLORENCE A. MERRILL, Resp't, v. PETER BRUNER, App'lt. Horatio W. P. Hodson, for resp't; Thos. O'Callahan, Jr., for app'lt. Judgment affirmed, with costs. All concur. Affirming 21 N. Y. State Rep., 378. |