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Opinion of the Court, per GROVER, J.

the justice shall forthwith render judgment, and enter the same in his docket. When the verdict has been received and entered by the justice he has no further judicial power or discretion in regard to it. He cannot set it aside, or in any respect modify it. His only remaining judicial duty is to determine the amount of costs to which the prevailing party is entitled and add the same to the verdict. This was done by the justice, and the amount entered by him in his docket, under the entry of the verdict. The law made a judgment for this amount the only one that could be rendered by the justice. He had no discretion or power to alter or vary it in any respect. His judicial functions in respect to the case were terininated. An entry, preceding the statement of this amount of judgment for plaintiff, would in no respect be the exercise of judicial power, but the performance of a mere ministerial act. To hold that the omission to make this entry rendered the entire proceedings in the action a nullitý would be sacrificing substance to form, and giving too much weight to technicality. This entry might have been made by the justice at any time, and should, for the purpose of sustaining the proceedings, be regarded as made. In the exercise of judicial functions the case is entirely different. When the case is tried by the justice, without a jury, he is judicially to determine the amount of the recovery, and he must do this and make an entry thereof, as required by law, within the time fixed by statute for that purpose. After the expiration of this time, his judicial functions in respect to the matter cease, and he can do nothing further in the premises. (Hall v. Tuttle, 6 Hill, 38, and cases cited; Fish v. Emmerson, 44 N. Y., 376.) The remaining inquiry is, whether at the time of the levy of the execution the ties in question were the property of the respondent or of Daniels, the execution debtor. The substance of the facts found and proved relating to this question was, that Daniels was, in 1861-2, in possession of certain land upon which there was growing hemlock timber suitable for railroad ties; that he made a verbal agreement with the respondent to cut, manufacture and

Opinion of the Court, per GROVER, J.

deliver to him 1,000 ties on the side of the railroad track for twelve cents each, the respondent to pay as the work prógressed; that it was further agreed that the ties were to be the respondent's as soon as the trees were cut from the stump; that Daniels cut, hewed and hauled out upon the lands of a third person timber for about 800 ties, but the trees were not cut up, but long enough to make from two to five ties each ; that the respondent paid Daniels from time tò time upon the contract an amount nearly or quite equal to the price to be paid for 800 ties; that about the first of February, the respondent and Daniels were together where the timber had been drawn, and the latter pointed out the same to the former, and said, "here are your ties." The respondent said he wanted them inspected, and said something about culls. The respondent claims title, first, under the contract for the purchase and the payments made by him upon it; and second, upon the transaction between him and Daniels in February at the time Daniels pointed out the timber to him. His counsel claims that, inasmuch as the trees of which the ties were manufactured were in existence at the time the verbal contract was made, and were then the property of Daniels, he was at liberty to sell the ties upon such terms as he saw fit; and that, as the contract provided that the ties should be the property of the respondent as soon as the trees were cut, he became the owner of all the ties as soon as the same were cut, and cites Van Hoozen v. Cory (34 Barb., 10), Conderman v. Smith (41 id., 404), and other cases involving a similar principle in support of his position. In the first cited case it was held that the owner of a farm, stocked with cows, who leased the same, reserving a specified rent, the lease containing a provision that the cheese to be made from said cows should be his property until the rent was paid, became the owner of such cheese as soon as the same was manufactured, and continued such until payment of the rent. In this case will be found an examination of the authorities relating to the acquisition of property when it has a potential but not an actual existence. Conderman v. Smith involved a similar question,

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Opinion of the Court, per GROVER, J.

and was decided upon the same principle. It will be seen that in these cases there was nothing whatever to be done by the parties subsequent to the making of the contract to identify the property embraced in it. It applied to and included all the cheese manufactured from the cows, irrespective of its quality, whether merchantable or not. There was to be no inspection or examination to determine what cheese answered the requirement of the contract. The difficulty, if any, in the cases was whether the contract was an absolute purchase of the cheese or was intended as a mere security for the payment of the rent, a question not involved in the present case. But in this case subsequent acts were to be done by the parties to identify the property to be transferred under the contract. The respondent made no purchase of the trees as they were from time to time cut. Had a quantity of trees after this been consumed by an accidental fire, Daniels could not have recuvered their value of the respondent, nor the value of the ties that might otherwise have been manufactured therefrom. The respondent was not bound to take all the ties manufactured, but only such as were merchantable, and suitable for the purpose intended. The ties were to be examined to ascertain this fact, and until so examined and accepted by the repondent, the title did not vest in him. Comfort v. Kiersted (26 Barb., 473, and cases cited), Parker v. Schenck, and other similar cases are cited by the Supreme Court as sustaining the title of the respondent. These cases involved the question, whether the contracts were within the statute of frauds, and therefore void, and did not involve the question of title to the property which was the subject of the contract. It is entirely clear that no title was acquired by the respondent by what occurred between him and Daniels in February. The referee has made no special finding of fact in regard to this matter. But, as the judgment has been affirmed by the Supreme Court, it is proper to examine the evidence, to ascertain the facts proved in support of the legal conclusion. I have adopted the testimony of the respondent upon this matter. From that it


Statement of case.

appears that he did not accept of the ties at that time, but
claimed that they should be inspected, spoke of culls, which,
of course, he intended should be thrown out. The title, being
in Daniels at the time of the levy of the execution, was
acquired by the purchaser at the sale, who transferred the
same to the appellant. He was, therefore, upon the facts
found, entitled to recover for their conversion by the defend-
ant. The judgment of the Supreme and of the County Courts
must be reversed and a new trial ordered, costs to abide

All concur
Judgment reversed.

49 42 116 382 116 468

William T. FILER, Respondent, v. THE NEW YORK CENTRAL


49 42 127 666

4942 158 263 49 42 168 5 33

Successive actions cannot be maintained for the recovery of damages, as

they may accrue from time to time, resulting from an injury to the person, the consequence of a single wrongful act, but the party injured is entitled to recover, in a single action, compensation for all the damages resulting from the injury, whether present or prospective. The limit in respect to future damages is, that they must be such as it is reasonably

certain will inevitably and necessarily result from the injury. Any evidence tending to show the character and extent of the injury, and

its probable results, and the probability of the return of a disease

induced thereby, is competent. A question, therefore, to a physician, asking him to state, from his experi

ence and medical knowledge, the probability of a recurrence of inflam.

mation in an injured muscle, is competent. So, also, is evidence of a physician as to the probable effect on the general

health of the injured person. In the propounding of hypothetical questions to medical experts, it is the

privilege of counsel to assume, within the limits of the evidence, any state of facts which he claims the evidence justifies, and have the expert's opinion upon the facts thus assumed.

(Argued February 26, 1872; decided March 26, 1872.)

Statement of case.

APPEAL from judgment of the General 'Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiff entered upon a verdict.

The action is brought for damages to plaintiff in consequence of injuries sustained by his wife, Mrs. Helen M. Filer, while a passenger of defendant, at Fort Plain, on the night of the 4th of November, 1864.

Mrs. Filer left Rochester for Fort Plain on the evening of the 4th of November, on a train which was to arrive at Fort Plain between three and four o'clock the following morning.

As the cars approached the station, they moved very slow, but did not stop.

As Mrs. Filer, pursuant to the direction of the brakeman, attempted to get off, her clothes caught in the steps; she was thrown down and dragged a considerable distance.

The shock rendered her insensible for a short time. Her back was bruised, and she was lame, and suffered pain in her back and hip, which has continued. The lameness and pain at length, in the early winter of 1866-7, resulted in psoas abscess.

Upon the trial, Mrs. Filer's physician was asked the following questions:

“State, from your experience and medical knowledge, the probability of a recurrence of an inflammation of this muscle?"

To this question defendant objected, on the ground that it called for a conclusion, and for damages too remote and speculative.

The objection was overruled, and defendant duly excepted.

Ans. “I couldn't say the probabilities were very strong; but still I should feel that there was danger of the return of the inflammation and accumulation of the fluid. I speak from experience.”

“What will be the probable effect upon the health of Mrs. Filer, in your opinion?” Objected, etc.

Ans. “I expect that her general health would suffer more or less in consequence.”

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