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incompetent. Motion denied. Plaintiff excepted.) That is the substance of it. Mr. Alfred wanted to cross the land, and Mr. Giles told him he could do it, and wanted me to draw up a writing. There was a writing drawn. Mr. Giles was to come in and sign it, but he didn't execute it. (Plaintiff moved to strike out the testimony as to the writing. The motion was denied, and plaintiff excepted. Plaintiff moved to strike out the testimony of the witness Webb as to the conversations with Richard Giles, on the grounds stated in the objections at the time, and also on the ground that there is no evidence that Giles owned the land, or had any authority to give anybody permission to cross. Motion denied. Plaintiff excepted.)"


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It was not material to the case that a former owner had given defendant license to cross over the land. Such evidence was entirely irrelevant. The complaint alleges that notice had been given by plaintiff to defendant, before the alleged trespasses, that he (plaintiff) was the owner of the premises, and forbidding any trespass thereon, and this allegation is not denied. The evidence so objected to and received may have influenced the verdict of the jury. We are also unable to see in what view the testimony that the Shanley & Alfred Lumber Company had 40,000 logs cut at the end of the road so attempted to be laid out, and which there was no practical way of getting out, except over said road, can be deemed competent. The fact that defendant, or the copartnership to which he be. longed, had no other way of moving their logs except over the road so attempted to be laid out, did not justify a trespass on plaintiff's premises without his consent. We are unable to see that the fact so allowed to be proved tended to mitigate damages. This testimony may also have influenced the verdict. On account of the receipt of this evidence, the judgment should be reversed, and a new trial granted; costs to abide the event.

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HERRICK, J. The judgment being reversed, the orders for costs naturally fall with it. The appeals in the matter of costs, heard at the same term of this court, we see no occasion for passing upon at this time.

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MAYHAM, P. J. I think the allegations in the amended answer from folio 38 down to and including the words "took place," in folio 41, were sufficient, prima facie, to show that the locus in quo was a public highway; and thus raise question of title to land, which, if pleaded in justice's court, would have ousted the justice of jurisdiction; and that the statement in the answer that the “defendant verily believed that said high way so laid out as aforesaid was a legal highway" was not such a necessary part of the pleading as to overcome the positive allegations of fact that this entry was upon a public highway, as set out in the answer. The defendant having taken the responsibility of pleading a public highway in justifica: tion of his entry, his belief as to its legality becomes quite imma. terial, and could not be the subject of proof on the trial. But, as illegal evidence was offered and received on the trial, the judgment should for that reason be reversed.

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HASKELL V. NORTHERN A. R. CO. (Supreme Court, General Term, Third Department. December 6, 1893.) APPEAL-HARMLESS ERROR-ADMISSION OF INCOMPETENT EVIDENCE.

The admission of incompetent evidence is harmless error, where there was sufficient competent evidence to sustain the finding of the jury. Appeal from circuit court, Franklin county.

Action by John M. Haskell against the Northern Adirondack Railroad Company for destruction of plaintiff's trees by fire alleged to have been set by one of defendant's locomotives. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

Argued before MAYHAM, P. J., and HERRICK, J.
S. A. Beman, for appellant.
J. C. Saunders, for respondent.

MAYHAM, P. J. We think all the questions raised on this appeal were correctly disposed of by this court on a former argument, as reported in 21 N. Y. Supp. 234, unless this court erred in sus. taining the decision of the trial judge, wherein he allowed evi. dence of the value of the standing fruit trees destroyed by the fire, instead of the difference in value of the land on which they stood, . by reason of their destruction. In deciding this case on the former argument, this court followed the decision in Whitbeck v. Railroad Co., 36 Barb. 644. That was an action for damages for the destruction of plaintiff's fruit trees by fire caused by the negli ligence of the defendant; and the witness was permitted, in answer to questions put by the plaintiff's counsel, under defendant's objection, to state the value of the trees destroyed, and this court, on appeal, held the evidence competent. That decision was referred to in Argotsinger v. Vines, 82 N. Y. 314, and was tacitly approved by the court, although a different rule of damages was adopted in that case; and the court, without sustaining the rule then laid down, affirmed the judgment, on the ground that the difference, if any, in the damages in that case, was too small to justify a reversal, and therefore applied the maxim, 'De minimus non curat lex.” But it is now claimed that the law was definitely settled in Dwight v. Railroad Co., 132 N. Y. 199, 30 N. E. 398, where it was held that the following question was erroneously put and answered under the defendant's objection. "Q. What were these twenty-one trees worth at the time they were killed ?” The attention of this court was not called to that decision at the time of the former hearing of this appeal, if, indeed, it had been promul. gated at that time. Assuming, however, as we must, that this decision, which is directly in point, is the law of this state, the evidence offered and received in this case was erroneous; and, as the same related to an important question in the case, the judgment must, for that reason, be reversed, unless we can see that the other rule of damages also adopted by the plaintiff in his proof cured the error, and that no damage resulted to the defendant from the receipt of the evidence erroneously received. It is quite apparent

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that sufficient evidence of an unobjectionable character was given in this case, upon the question of damages, to sustain this verdict. Evidence was offered and received showing the value of the farm before the injury complained of, and its value after the damage by fire to these fruit trees. This was legal evidence, and an examination of it shows that there was enough of that class of evi. dence to uphold the verdict of the jury. An examination of the evidence upon the question of damages offered upon both theories as to the proof of damages in this case shows that the testimony as to the value of the trees was more favorable to the defendant than that relating to the difference in the value of the farm before or after the fire; and hence it is apparent that the appellant was not prejudiced by the error, and under the provisions of section 1003 of the Code of Civil Procedure the error should be disregarded on this appeal. Carley v. Railway Co., 16 N. Y. St. Rep. 307; Powell v. Flechter, (Com. Pl. N. Y.) 18 N. Y. Supp. 451; Miller v. Barber, 66 N. Y. 568; Hoffman v. Conner, 76 N. Y. 121. The error in the receipt of the evidence of the value of these trees was not, therefore, prejudicial to the appellant, and does not afford ground for reversal. Lewis v. Hojer, (Com. Pl. N. Y.) 16 N. Y. Supp. 534. On the whole case, therefore, we see no reason for the reversal of this judgment. Judgment affirmed, with costs.

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FERGUSON et al. v. GILL. (Supreme Court, General Term, First Department. December 15, 1893.) 1. APPEAL-DISCRETION-SETTING ASIDE VERDICT.

An order setting aside a verdict on the ground that it was not sup. ported by the evidence will not be disturbed on appeal, unless the trial

court appears to have abused its discretion. 2. CORPORATIONS-LIABILITY OF TRUSTEES FOR CORPORATE DEBTS.

In an action to charge a trustee for corporate debts, on the ground that he had signed a false certificate that the stock had been paid in, evidence that plaintiff knew the way in which it was proposed that the whole amount of stock was to be issued in payment for property of slight value is immaterial, the issue being whether or not defendant knowingly signed the false certificate. Appeal from circuit court, New York county.

Action by James H. Ferguson and another, as surviving partners of Henry Lovejoy, composing the firm of Lovejoy, Son & Co., against George H. Gill, to recover a debt of the Lithographoid Engraving & Printing Company, on the ground that defendant, being trustee of the company, joined in the making and filing of a false certificate that the capital stock had been paid in. From an order setting aside a verdict in favor of defendant, and granting a new trial, de fendant appeals. Affirmed.

For former report, see 19 N. Y. Supp. 149.

Argued before VAN BRUNT, P. J., and O'BRIEN and PARKER

Charles E. Rushmore, for appellant.
Benjamin Estes, for respondents.

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O'BRIEN, J. This action was brought to enforce a liability against defendant for certain debts of a corporation organized under the manufacturing act, (Laws 1848,) on the ground that he, being a trustee of that company, joined in the making and filing of a false certificate that the capital stock of the company had been paid in. The trial resulted in a verdict for the defendant, and thereupon the plaintiffs moved the trial court, on the minutes, to set aside the verdict and grant a new trial, on the ground that it was against the evidence, and on the ground of rulings made upon the trial, and upon all the grounds mentioned in section 999 of the Code of Civil Pro cedure. The motion was granted, and it is from the order granting such motion that the defendant appeals.

In the memorandum filed by the learned judge, he says, “I am of the opinion that the verdict rendered by the jury was contrary to the evidence." The liability sought to be enforced was predicated upon the fifteenth section of the manufacturing act of 1848, which reads as follows:

"If any certificate or report made or public notice given by the officers of any such company in pursuance of the provisions of this act should be false in any material representation, all the officers who shall have signed the same knowing it to be false shall be jointly and severally liable for all the debts of the company contracted while they are stockholders or officers thereof."

It will thus be seen that the burden was placed upon the plaintiffs of establishing two things: First, that the certificate filed was, in point of fact, false; and, second, that with knowledge of its falsity, the defendant signed it. Upon an examination of the evidence, we think that a preponderance thereof inclined to the view that the burden upon the first question, as to the certificate being false in point of fact, was sustained.

Upon the second question, as to whether the defendant knowingly signed it, there was an undoubted conflict of evidence, and neither side took exception to the presentation by the court of this question to the jury. Subsequent to the rendition of the verdict, and upon consideration, the trial judge, as shown by the memorandum, reached the conclusion that the verdict of the defendant was contrary to the weight of evidence, and upon this ground granted the motion. In passing upon a motion of this character, it must be remembered that the trial judge has had the advantage of seeing the witnesses, hearing their testimony, noting their manner, and of becoming impressed with the weight to be attached to evidence offered, which it is impossible to have photographed upon the record on appeal; and in a case where he becomes impressed with the preponderance in favor of either side, or thinks that injustice has been done by the verdict, it is a proper exercise of the power vested in him to set aside such verdict. We are unable to see that the power thus vested in the trial judge has, in this instance, been abused.

But, apart from the ground upon which he placed his decision, we think that there are other reasons, which are available upon appeal, though not referred to in the memorandum of the trial judge in granting the motion, which would have justified the disposition made. The most, we think, that could be claimed by the defendant

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upon this question of the known falsity of the certificate, is that, upon the evidence, it was a close one; and the effect of immaterial or incompetent evidence cannot be overlooked because it is difficult to determine what effect such testimony may have had on the minds of the jurors. Thus, in this case, against the objection and over the exception of the plaintiffs, considerable testimony was admitted tending to show that one of the plaintiffs, Ferguson, was cognizant of the steps leading up to the formation of the corporation; that he had knowledge of the way in which it was proposed to issue the stock, and of the slight value of the patent, in payment for which the entire capital stock of $100,000 was issued. That the plaintiffs, or either of them, aided or abetted in the plan by which the entire capital stock was issued for the letters patent, is not claimed; and, in the absence of such a contention or issue, we fail to see how their knowledge of what was done by the corporation, or of the value of the patent, can affect the question of whether or not the defendant knowingly signed the false certificate. We think that such evidence was both incompetent and immaterial, and no doubt tended to prejudice the plaintiffs with the jury. There are other rulings to which exceptions were taken by plaintiffs, equally good, but we think sufficient has been said to show that, where there are other reasons than those assigned by the trial judge for setting aside a verdict, these must be given due weight, upon an appeal such as this; the rule being that a right decision should stand, whether all the reasons be assigned or not. Marvin v. Insurance Co., 85 N. Y. 278, 284. The order should be affirmed, with costs and disbursements. All concur.

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(Supreme Court, General Term, Third Department. December 6, 1893.) 1. CONTRACTS-PARTIES—TO WHOSE BENEFIT PROMISE INURES.

One M. agreed to fill defendant's ice house, and to pay all expenses, and defendant agreed to pay M. 22 cents per ton, reserving the right to pay the workmen and to keep their time. Held, that such workmen could not recover for their services from defendant, as there was no privity between them and defendant. Lawrence v. Fox, 20 N. Y. 268, dis

tinguished. 2. EVIDENCE-HEARSAY.

In an action for services, evidence that M. told plaintiff, when he employed him, that defendant would pay him, is hearsay. Appeal from Albany county court.

Action by Michael O'Neil against the Hudson Valley Ice Company. From a judgment of the county court, entered on a verdict directed in favor of plaintiff, and an appeal from a judgment of the city court of Albany in favor of plaintiff, defendant appeals. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK,

George H. Stevens, for appellant.
John A. Stephens, for respondent.

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