fendant by direction of the court, plaintiff appeals. Reversed, and new trial ordered. Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and SHEARN, JJ. Lord, Day & Lord, of New York City (Franklin Grady, of New York City, of counsel, and Henry De Forest Baldwin, of New York City, on the brief), for appellant. William P. Burr, Corp. Counsel, of New York City (John F. O'Brien, of New York City, of counsel, and Terence Farley and William H. Kehoe, both of New York City, on the brief), for respondent. DOWLING, J. This action is brought to recover the reasonable value of water supplied between January 1, 1910, and June 1, 1915, for use in the sewage disposal plant and in police stations and fire houses in the borough of Queens. The plaintiff had contracts prior to consolidation with the villages of Far Rockaway, Rockaway Beach, and Arverne, providing for the supply of water to them for municipal purposes. Thereunder plaintiff was to be paid at the rate of $20 per annum per hydrant, supplying the water for certain designated purposes. After consolidation the board of public improvements of the city of New York adopted a general resolution regarding hydrant service by private water companies, under which $20 per annum per hydrant was still to be paid for certain specified supplies of water. In accordance with that resolution the city of New York entered into a supplementary agreement with the plaintiff, modifying the existing agreement with the village of Rockaway Beach, by which the price per hydrant remained the same, although the service to be rendered was specified. The Rockaway Beach and Arverne contracts expired by limitation July 1, 1902, and the Far Rockaway contract August 1, 1901. No new contracts between the plaintiff and defendant were thereafter made in writing, but the city continued to take water from the plaintiff's mains as theretofore. In the year 1910 a controversy arose as to the price to be paid for the service, and something in the nature of an arbitration was had, by which the deputy commissioner of water supply fixed the rate to be paid for 1908 and 1909 (bills for which had been presented and disputed by the city), as the result of which action payment was made at the rate of $20 per annum per hydrant as theretofore. The evidence is not entirely satisfactory as to the plaintiff's knowledge of the details of the report made by the deputy commissioner. The plaintiff has proved the reasonable value of the water taken by the defendant, and there is no issue either as to the amount of the water so taken or its reasonable value. [1, 2] Under the decision in Harlem Gas Co. v. Mayor, 33 N. Y. 309, it must be held that, where the written contracts between the parties had expired by limitation, no inference was deducible which would warrant the court in ingrafting the rates it prescribed on subsequent contracts between the parties, as could be done in the exceptional cases of a continuing relation, as that of master and servant and landlord and tenant, and the court there said that the defendants were liable for the value of the gas they had used, and could not claim the benefit of an agreement made when its value was less, as neither party had chosen to renew. So it seems to me in this case that, as the parties did not choose to renew, or extend, the contracts for the service of water to the city, in the absence of any agreement, express or implied, to the contrary, the defendant would be liable to pay the reasonable value of the water furnished. However, the defendant did introduce documentary evidence and elicited testimony from the plaintiff's witnesses, all of which tended strongly to show that there was in fact an agreement between the parties that the water in question was furnished under the annual hydrant charge, and that the understanding and intention of the parties was that there should be no additional charge of any kind for water so furnished. This, however, was a question of fact. The learned trial court announced at the close of the case that if the verdict of the jury had been taken, and it had been in favor of the plaintiff he would have set it aside. We do not wish to be understood as disagreeing with his conclusion upon the evidence so announced; but, as the understanding and intention of the parties must be gathered from the testimony, some of which is susceptible of two constructions, we think that the issue of fact hereinbefore indicated must be first submitted to a jury for determination. The judgment appealed from will therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. We may also indicate that in our opinion the objection to the reception in evidence of a statement made by Franklin B. Lord, Jr., could properly have been sustained, not upon the ground that he was not in a position to bind the company, but because it appeared that his answer was simply based on hearsay, and not on any personal knowledge. Order filed. CLARKE, P. J., and SMITH and SHEARN, JJ., concur. (186 App. Div. 546) BRODERICK v. BROOKLYN, Q. C. & S. R. CO. et al (Supreme Court, Appellate Division, Second Department. February 21, 1919.) 1. EVIDENCE 506-EXPERT TESTIMONY-PERSONAL INJURY ACTION-CAUSE OF PLAINTIFF'S CONDITION. In personal injury action, it was improper to permit attending physician to testify that plaintiff's condition of oedema of the legs was not due to other cause than the accident; such question being for the jury. 2. TRIAL 81(2)-RECEPTION OF EVIDENCE-OBJECTION TO TESTIMONY-FORM. Objection to question whether plaintiff's condition came from any other cause than the accident, on the ground that the question was improper in form and called for incompetent testimony, was sufficiently specific to call court's attention to the fact that it was the form of the question that was being objected to. 3. DAMAGES 208(2)-CAUSE OF PLAINTIFF'S CONDITION-JURY QUESTION. In personal injury action, where plaintiff was suffering from cedema of legs, the question of whether plaintiff's condition was caused by the accident is for the jury. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 4. TRIAL 196-PROVINCE OF COURT-INSTRUCTION ON EVIDENCE. In personal injury action, involving question whether plaintiff's condition was due to the accident, the court's statement, following an objection to the testimony, that "I shall charge the jury that they have to find from this evidence that prior to the accident she was a well woman, and that the accident was the cause of her condition to-day," was improper; the cause of such condition being a question for the jury. 5. APPEAL AND ERROR 1046(5), 1053(3)—REVIEW-HARMLESS ERROR. In personal injury action, admission of testimony by plaintiff's attending physician that plaintiff's condition was the result of the accident, and the court's statement that he would charge the jury to find from such evidence that the accident was the cause of her condition, was prejudicial error, such statement being an assertion that plaintiff had established her cause of action as a matter of law, and error was not cured by subsequent correct charge. 6. TRIAL 193 (1)—WEIGHT OF EVIDENCE. The weight and credit to be given testimony of witnesses was for the jury to determine, uninfluenced by court's opinion. Appeal from Trial Term, Queens County. Action by Mary R. Broderick against the Brooklyn, Queens County & Suburban Railroad Company and another. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant named appeals. Reversed, and new trial granted. Argued before JENKS, P. J., and MILLS, RICH, KELLY, and JAYCOX, JJ. Harold L. Warner, of New York City, for appellant. Henry M. Dater, of Brooklyn (Jay S. Jones and Edward J. Fanning, both of Brooklyn, on the brief), for respondent. JAYCOX, J. The plaintiff was injured by stepping into a hole while alighting from a car of the defendant. The evidence given upon the trial as to the manner in which the accident happened fully justified a finding of the defendant's liability. One of the seriously litigated questions was: Did the condition from which the plaintiff was suffering at the time of the trial result from this accident, or was it the result of some organic trouble not caused by the accident? This question was closely contested, and the plaintiff in support of her contention called her attending physician and two other doctors, who testified as experts. The defendant called an equal number of doctors, who qualified and testified as experts. The testimony of these two groups of doctors presented a sharp conflict. [1, 2] When the attending physician was upon the stand, upon redirect examination he was asked: "Did she have any oedema of the legs that came from any other cause than the accident?" This was objected to as improper in form and calling for incompetent testimony. The objection was overruled and an exception taken. The witness answered: "No." This was the question the jury was to determine, and it permitted the witness to usurp the functions of the jury. Marx v. Ontario Beach H. & A. Co., 211 N. Y. 33-38, 105 N. E. 97. The respondent does not claim that the question was correct in form. She claims, however, that the objection was not sufficiently specific to call For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes attention to the point involved. As the objection was to the form of the question, the attention of the court was directed to that very proposition. [3, 4] Thereafter the plaintiff completed her medical testimony and called lay witnesses, who testified to her physical appearance prior to the accident. Among them was a brother of the plaintiff, and he was interrogated as to the number of plaintiff's brothers and their ages. Objection was made to this line of testimony, and during a colloquy which ensued the court stated: "I shall charge the jury that they have to find from this evidence that prior to the accident she was a well woman and that the accident was the cause of her condition to-day." This was duly excepted to. Before this the witnesses had been examined as to causes other than trauma that were competent producing causes for the condition from which the plaintiff was then suffering. Upon redirect examination the plaintiff endeavored to eliminate all causes for the plaintiff's condition suggested by the cross-examination. The result of this examination presented a question for the jury. With this situation before it, the court permitted a witness to testify that the œdema from which the plaintiff was suffering resulted from this accident, and then declared that he would charge the jury to the same effect. [5] That the admission of the evidence and the remarks of the court were both errors cannot be seriously disputed. Their effect was cumulative; one supports and enforces the other. The statement of the court emphasizes the testimony of the plaintiff's witness, and asserts that plaintiff has established her cause as a matter of law. The witnesses presented by the plaintiff were all interested witnesses, and the weight and credit to be given to their testimony was for the jury to determine, uninfluenced by the court's opinion. These remarks constituted reversible error. Peterson v. Eighmie, 175 App. Div. 113, 161 N. Y. Supp. 1065; Swan v. Keough, 35 App. Div. 80, 54 N. Y. Supp. 474; Davison v. Herring, 24 App. Div. 402, 48 N. Y. Supp. 760; Hogan v. Central Park, etc., R. R. Co., 124 N. Y. 647, 26 N. E. 950; People v. Brow, 90 Hun, 509, 512, 35 N. Y. Supp. 1009. In the cases cited the remarks complained of were all derogatory of counsel for the unsuccessful party or of the case made out by that party, while the remarks here complained of are commendatory of the case of the successful party. But this is of no moment. If a judge by his remarks deprives a litigant's case of the force and effect to which it is entitled, or gives it a weight and credit to which it is not entitled, the effect is the same. It deprives one party or the other of the opportunity of having his case passed upon by a jury uninfluenced by the court's opinion. [6] In this case, as in some of the cases cited. there is nothing to indicate that the court had any intention of being unfair. The fact is that in this case the court was eminently fair, and was only endeavoring to shorten the trial by the remark complained of. This, however, gives to an erroneous remark of this character additional weight and renders it more likely to sway the jury. "A party to an action is entitled to a determination of the jury on the question of the credibility of witnesses, uninfluenced by the opinion of the court." People v. Brow, supra. The defendant was deprived of that right in this case. The court unintentionally passed upon that, in this case, when he used the remarks above quoted. The subsequent correct charge did not cure this error. It merely gave the jury the right to determine the question of the preponderance of the proof. The court had permitted a witness to testify that the plaintiff's oedema (her serious trouble) was caused by the accident, and had subsequently declared that plaintiff's proof established this fact, so that the court would charge it as a matter of law. Under these circumstances, I think the defendant had little opportunity of convincing the jury that plaintiff's condition did not result from the accident. The judgment and order appealed from should be reversed, and a new trial granted; costs to abide the event. All concur. PATRONE v. INTERBOROUGH RAPID TRANSIT CO. (Supreme Court, Appellate Division, First Department. February 21, 1919.) 1. MALICIOUS PROSECUTION 64(2)-PROBABLE CAUSE-SUFFICIENCY OF EVIDENCE. In action against street railway for arrest procured by its ticket agent upon complaint that plaintiff had cut him with a knife, evidence held to show that there was probable cause for the arrest. 2. MALICIOUS PROSECUTION 42-ARREST PROCURED BY TICKET AGENTLIABILITY OF RAILROAD. Where ticket agent caused arrest upon complaint that arrested party had cut him with a knife, railway employer was not liable for false imprisonment; the arrest being the ticket agent's individual act, and not the act of the employer. Smith, J., dissenting in part. Appeal from Trial Term, Bronx County. Action by Raffaele Patrone against the Interborough Rapid Transit Company to recover for false imprisonment and malicious prosecution. From a judgment for plaintiff, and an order denying a motion for at new trial, defendant appeals. Reversed, and new trial ordered. Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, SMITH, and MERRELL, JJ. James L. Quackenbush, of New York City (B. H. Ames, of New York City, of counsel), for appellant. Peter C. Kelly, of New York City (John P. Joyce, of New York City, on the brief), for respondent. SMITH, J. The plaintiff, together with his employé, purchased two tickets of the defendant company, and upon attempting to go out upon the platform to board the train were stopped by the ticket chopper, because they had in their possession two long poles, which the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |