EQUITY. RELIEF. EVIDENCE.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

John Simson et al., respts., v. John Chadwick, applt.

Decided Oct., 1884.

Relief will be granted. although not asked for in terms by the complaint, when it is clearly equitable and within the power of the Court.

A general objection to a question which is proper in part cannot be sustained.

Although the relief granted by the referee is not in terms asked for in the complaint, yet the granting of it is clearly equitable and is within the power of the court in this action. The debt is due, plaintiffs are ready to pay, and defendant has manifested his willingness to receive what is due by seeking to foreclose his mortgage by way of affirmative relief in this action.

As defendant, on taking this ap

ee's report.

The real issue is as to the

amount unpaid on the mortgage held by defendant against plaintiffs' land, payment of which has been assumed by them. That issue the referee has decided in favor of plaintiffs upon sufficient evidence. The complaint was framed on the theory that plaintiffs having tendered defendant the amount which, according to their claim and the referee's finding, was unpaid upon the mortgage, the lien thereof was discharged, and they were entitled to judgment requiring defendant to execute a satisfaction of the mortgage. The tender, however, was not ab. solute, but conditional, and was not kept good. The referee has held that plaintiffs may redeem on paying the sum due, with costs.

E. J. Sprague, for applt.
D. H. McMillan, for respts.

Held, Probably sufficient rea

clerk a discharge of the mortgage to be delivered to plaintiffs in case of affirmance, Code of Civ. Proc., §§ 1328-1330, plaintiffs should be required to pay into court the sum tendered, in case defendant does not accept it, for the ultimate security of defendant.

The objection to the question asked of plaintiff, Simson, was The fact of properly overruled. furnishing money to his son, since deceased, was competent to be proved by his testimony, and the objection to the entire question without specifying any reason was

too broad.

Judgment modified as indicated and as modified, affirmed, with

out costs.

Opinion by Smith, P. J., Barker, Bradley and Corbett, JJ.,

concur.

CHATTELS. POSSESSION.

PROOF.

particular relief, which consists in removing the mortgage as a cloud. upon the title.

TERM. FIFTH DEPT.

Ethel L. Lyon, respt., v. Ashbel

R. Sellew, applt.

Decided Oct., 1884. Plaintiff proved that he entered peaceably upon certain land, felled timber, cut it into logs and prepared to draw them away upon roads made by him for the purpose. Held, That plaintiff showed such a possession of the logs as enables him to recover from defendant, a mere intruder, who converted the logs and timber to his own use.

Appeal from judgment on referee's report.

Action for conversion of pine and oak logs and timber. The land where the timber grew was a wood lot, unimproved and unoccupied. Plaintiff went on to the lot with men and teams to remove the tim

one Wing and a sale by Wing to plaintiff. This is new matter, and is an admission of plaintiff's title. Defendant's allegation that Wing's sale to plaintiff was procured by the fraud of the latter is not proved, and if it were it would not help defendant, as he did not connect himself in any way with Wing's title.

Judgment affirmed.

Opinion by Smith, P. J.; Barker, Haight and Bradley, JJ.,

concur.

WARRANTY. DAMAGES.

roads, cut a large amount of timber, cut about half the trees so felled into logs, and placed a considerable quantity thereof on skids which he prepared therefor, and drew off from said lot over said roadways some of the logs. While plaintiff was in possession of the logs so cut defendant ordered him. to desist from removing them, and later took possession of them and converted them to his own use. No proof of title was given on the trial.

W. H. Henderson, for applt. Goodwill & Stevens, for respt. Held, That plaintiff showed such possession of the logs and timber as enables him to recover of defendant, who, so far as the case shows, was a mere intruder. Cro. Eliz., 819; 3 Wils., 332; 8 B. & C.,

737.

Miller v. R. R. Co., 71 N. Y., 380; Thomson v. Burhans, 79 id., 93, distinguished.

Defendant's answer, after deny ing the complaint, alleges title in

TERM. FIFTH DEPT.

Willis B. Rich, respt., v. Andrew V. Smith, applt.

Decided Oct., 1884.

Where a horse is warranted to be "good, kind and gentle, suitable for family use," the warranty is a general one, and the measure of damages resulting from the horse's running away is the difference between the horse's value as she was and her value if she had been as warranted; injuries to the driver, buggy and harness cannot be included.

Appeal from judgment of County Court entered on verdict.

Plaintiff sued for $500, lent money, and defendant recouped the damages sustained by him through breach of plaintiff's warranty on sale of a horse. Plaintiff warranted the horse to be good, kind and gentle, suitable for family use. In fact, she would run away, and when defendant was driving her one day she did run away; there was a collision, defendant was hurt, his buggy and harness were damaged, and the horse was injured so

that it had to be killed. Defendant's offer to prove the amount of such injuries was excluded. The judge charged that the measure of defendant's damages was the difference between the value of the horse as it was and its value if it had been as warranted.

Raines Bros., for applt.

J. & Q. Van Voorhis, for respt. Held, No error. The rule is different in case of special warranty, having reference to a particular purpose for which the property is to be used. 34 N. Y., 634, and cases cited by Davies, Ch. J. But where the warranty is general, as here, an accidental damage even in the vendee's own affairs is not regarded. 5 Hill, 472. See 21 Wend., 342; 3 Denio, 406. Judgment affirmed. Opinion by Smith, P.J.; Barker, Bradley and Corbett, JJ., concur.

NEGLIGENCE.

N. Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT.

Clara A. Abbey, respt., v. The N. Y. C. & H. RR. Co., applt.

Decided Oct., 1884.

It is no error to charge the jury that if the brakeman whose duty it was to notify passengers of the movements of the train, as

sured plaintiff it was safe for her to alight, she was excused from the negligence of

getting off the moving train. And the ad

ditional charge that if plaintiff believed it was imprudent for her to alight, and her judgment was the true one, she should have remained on the train was certainly as

Appeal from judgment on verdict at Circuit, and from order of Special Term denying motion for new trial.

Action for injuries received by plaintiff while a passenger on defendant's road. Plaintiff took defendant's train for Spencerport, a regular stopping place for the train. As the train neared Spencerport a brakeman opened the car door and called out "Spencerport." Plaintiff then left her seat and went out onto the platform, where the brakeman was. asked her if she got off there, and she said yes. She waited a little for the car to stop, and the brakeman, who had got off, was walking on the station platform along. side of the train. He said to her, "they won't stop any more," and reached out his hands to take her

He

off. She said, "I don't hardly dare to get off," and he said again, "they don't stop any more," and pulled her off, she committing herself to him, and as he twisted her around she was injured in her back. The brakeman then jumped aboard and the train went on without stopping. The plaintiff was 62 years old, and recovered $2,550. The judge charged the jury that if the brakeman, whose duty it was to notify passengers concerning the movements of the train, assured plaintiff that it was safe for her to alight she was excused from the act of negligence in getting off the train while it was moving, which she otherwise would be guilty of; and he also

ask.

Held, The first portion of the charge was proper within the doctrine of 49 N. Y., 47. And the second proposition was certainly as favorable to defendant as it could properly claim.

Judgment and order affirmed. Opinion by Smith, P. J.; Bradley and Corlett, JJ., concur; Barker, J., not sitting.

upon the several items of counterclaim specified in the answer, but he was not asked to submit to the jury the item now claimed, and no suggestion was made at the trial that defendant was entitled to it. H. H. Woodward, for applt. George Willis Hall, for respt. Held, That the claim cannot be made, for the first time on appeal.

Judgment affirmed.

Opinion by Smith, P. J.

COUNTERCLAIM.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

BILL OF PARTICULARS.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Thomas F. Hayes, as general

Decided Oct., 1884.

Davidson, sheriff, respt.

Decided Oct. 8, 1884.

Appeal from County Court judgment on a verdict rendered upon a new trial in an action begun in justice's court and brought into County Court by appeal.

Action for personal services. The point is made that defendant should have been allowed a certain counterclaim of $65. No such counterclaim is set up in the answer, nor does it appear that it was claimed at the trial in County Court or before the justice. A counterclaim of $60 was set up in the answer before the justice, but it did not include the claim in question, and on the trial in County Court the judge called the jury's

on process, a stock of goods from the possession of an assignee for the benefit of creditors, and removing them from his possession, is not entitled to demand a bill of particulars of the items of the stock of goods so seized and taken; but if, after the commencement of the suit a portion of the goods remaining undisposed of in the hands of the sheriff is returned by him to such assignee, the latter may be ordered to furnish the sheriff with a bill of particulars of the goods so returned.

Appeal from an order directing the plaintiff to furnish a bill of particulars.

The defendant, as sheriff of the county of New York, seized certain goods which were part of the estate of one Duncan D. Grant, under certain warrants of attachment issued against said Grant

upon the ground that he had assigned and disposed of his property with the intent to defraud his creditors. The plaintiff, as the general assignee of the said Grant, claimed these goods and brought this action to recover for their conversion. Some of the goods seized were sold by the defendant before the commencement of this action, but those remaining in his possession at the time this suit was brought were, about three weeks after its commencement, returned by him to the plaintiff and accepted by the latter. Upon the application of the defendant, the plaintiff was ordered to furnish a bill of particulars, stating the nature of all the articles carried away by the defendant and their value.

Peter Condon, for applt.

W. Bourke Cockran, for respt. Held, That ordinarily a sheriff who is sued for taking on process a stock of goods from the possession of an assignee and removing them from his possession is not entitled, when sued by such assignee, to demand a bill of particulars of the items of the stock of goods so seized and taken. That presumptively his possession of the goods is sufficient to give him full knowledge of what they consist, and a better opportunity to know their items than the assignee in trust from whom they have been taken, but as to the items returned to the assignee, if such return were the gross of a remaining bulk, the assignee who received them ought to be in a better posi

tion to know the items than the sheriff.

Order modified so as to limit the bill of particulars to the items returned to the plaintiff.

Opinion by Davis, P. J.; Daniels, J., concurred, holding that there would be no injustice or inconvenience produced by an entire denial of the motion, but that as the plaintiff had the ability to furnish a statement of the articles. returned, and as that would remove all possible ground for misunderstanding concerning the controversy, he might well be required to do that.

Brady, J., favored the affirmance of the order upon the ground that the allegation in the complaint, viz., "that between certain dates the defendant as sheriff willfully and wrongfully seized, took, and carried away and converted to his own use certain goods and merchandise, the property of the estate of Grant, and belonging to the plaintiff as assignee," was too general in an action like this, and the court below was justified in directing the order which was made in the exercise of its discretion.