Imágenes de páginas

fire thereon which spread to plain- ally are just as competent to form tiff's land. There was evidence opinions in reference to them and which tended to show that it was draw inferences from them as witthis fire that destroyed plaintiff's nesses, there is no occasion to rebuildings; that at the time the sort to expert or opinion evidence. land was very dry and the fire was Such evidence should not be inuch started when the wind was blow- encouraged, and should be received ing a strong gale in the direction of only in cases of necessity. plaintiff's lot. Defendant's wit The opinions of experts should nesses gave evidence as to the con. not be received where the inquiry dition of the land, the state of the is into a subject the nature of weather and of the wind and vari- which is not such as to require ous other circumstances surround any peculiar habits or study in ing the fire. Defendant, as a wit-order to qualify a man to underness in his own behalf, testified stand it. 29 Vt., 409 ; 107 Mass., that he was a farmer and had 494 ; 105 id., 297; 8 Minn., 23; 33 cleared and seen others clear land. Cal., 230; 35 Iowa, 109; 23 N.H., He was then asked whether in his 237; 5 Hill, 603; 10 Barb., 137; opinion it was a proper time when 10 N. Y., 114. the fires were started for burning Hayes v. Miller, 70 N. Y., 112, log heaps on a fallow that had distinguished. been burned over. This was ob Judgment of General Term, jected to, and the objection being affirming judgment on verdict for overruled an exception was taken. defendant, reversed, and new trial

Held, Error ; that the subject ordered. of the inquiry was not one requir Opinion by Earl, J.

All coning expert evidence.

cur, except Miller, J., dissenting. It is not sufficient to warrant the introduction of expert evi

JUDGMENT. dence that the witness may know more of the subject of inquiry, N. Y. COURT OF APPEALS. and may better comprehend and

Clapp et al, exrs,, applts., appreciate it than the jury, but to

Hawley et al, respts. warrant its introduction the sub ject of the inquiry must be one Decided Jan. 20, 1885. relating to some trade, profession, The signature of the judge forms no part of science or art, in which persons the judgment entered and need not be coninstructed therein by study or ex tained in the copy of judgment served to

limit the time within which an appeal may perience may be supposed to have

be taken. more skill and knowledge than jurors of average intelligence may This is an appeal from an order be presumed to have.

of General Term, reversing an order In a case where the facts can be of Special Term denying a motion placed before a jury, and they are by defendants to compel plaintiffs of such a nature that jurors gener to accept a notice of appeal. It


appeared that on Feb. 10, 1882, a of the court with the proposed paper was served on defendants' judgment furnished by plaintiffs attorneys, which

was indorsed attorney. It was wholly super“copy judgment,” with a notice fluous, 3 Robt., 331, and therefore that it was a copy of a judgment the service made Feb. 10, 1882, entered in the above entitled ac was regular, and the time to serve tion in the office of the clerk of notice of appeal having expired, Westchester county on the 4th of defendants' motion was properly Feb., 1882. The notice was duly denied. subscribed with the name and Order of General Term, reversaddress of plaintiffs' attorney. ing order of Special Term denying These papers were retained by motion, reversed, and order of defendants' attorneys and no offer Special Term affirmed. made to return them, or any ob Opinion by Rapallo, J. All jection made to them, until the concur. . present motion was made in Feb., 1884. It was claimed that as the

POOR. AUDIT. draft judgment filed for the pur

N. Y. COURT OF APPEALS. pose of entry in the clerk's office had appended to it the signature Neary, applt., v. Robinson et of the judge upon whose decision al., Supts., respts. the judgment was to be entered,

Decided Jan. 20, 1885. and as no copy of such signature was appended to the copy of the An attorney's claim for services rendered in judgment, as entered, served on prosecuting a bastardy case is not one “redefendants' attorneys, the service

lating to the relief, support or transportation

of the poor” within the meaning of the was not good, and defendants

statute giving to superintendents of the time to appeal had not ex poor power to audit accounts. Such claim pired. The judgment entered in is a county charge and subject to the audit this case on the decision of the

of the Board of Supervisors. court was a final one. No attempt This action was brought to reto appeal was made until Dec. 14, cover for services rendered by 1883.

plaintiff, as attorney and counselA. R. Dyett, for applts.

or, on the retainer of defendants, Wm. H. Arnoux, for respts. to conduct certain proceedings in

Held, That, there being no con bastardy instituted by them. The troversy as to the facts, the ques defense is put solely on the ground tion raised by this appeal is one of that the superintendents of the law. The order appealed from poor as an auditing board had juaffects a substantial right. 22 N. risdiction to audit and settle the Y., 321. The signature of the account, and having exercised that judge was no part of the judgment, power plaintiff was bound by it and was not necessary for any and could not maintain an action purpose. It simply relieved the upon his demand. It appeared clerk from comparing the decision that the proceedings instituted for

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defendants by plaintiff were com Decided Jan. 20, 1885.
promised, defendants accepting a The court has power to order the severance of
gross sum which was more than a joint petition under Chap. 338, Laws of
sufficient to cover all the expenses.

1858, and to grant leave to the petitioners Edward H. Neary, applt. in

to serve separate petitions, and a proceeding

under a separate petition served under such person.

leave must be considered as a continuation D. M. Robertson, for respis. of the one originally instituted.

Held, That the provision of the Reversing S. C., 19 W. Dig., 465. statute that “superintendents of The petitionerin December, 1873, the poor shall andit and settle all joined in a general petition, with accounts of overseers of the poor,

several other land-owners, to vajustices of the peace, and all other cate an assessment upon his and persons, for services relating to the the other petitioners' premises. support, relief or transportation The petition showed the respectof county paupers, and shall from ive ownerships of the lots assessed, time to time draw on the county and assigned four grounds for treasurer for the amount of the ac- the removal of the lien. At that count they shall so audit and set- date the assessments were unpaid. tle," does not apply to a case like While the general proceeding was the present. Plaintiff's claim was pending, and before a hearing, the not one “relating to the relief, petitioners moved at Special Term support or transportation of the for leave to sever their petitions poor,” as that phrase is used in and to serve separate petitions. the statute. Defendants, as super- This motion was granted and the intendents of the poor, were au- petitioner here filed his petition thorized to employ counsel to con. founded upon his grievance alone. duct the bastardy proceedings, The assessment had in the mean and having done so became respon- time been paid. The motion was sible as employers, and whatever granted, the order requiring that expense they thus incurred became the substituted several petitions a county charge and subject to the should contain the same allegaaudit of the board of supervisors. tions made in the one on file. No

Judgment of General Term, af- appeal was taken from this order. firming judgment of County Court The Special Term reduced the asdismissing complaint, reversed, sessment and the General Term and judgment of Justice's Court reversed its order, on the ground affirmed.

that the payment of the assessOpinion by Finch, J. All con ment was a bar to the relief sought cur.

in the present proceeding, as no

lien existed when the several petiASSESSMENT.

tions were filed.

Samuel Hand, for applt.

D. J. Dean, for respt.
In re petition of Mehrbach to Held, That the present proceed-
vacate assessment.

ing must be considered as a con


tinuation of the proceeding orig. | injuries, and may well consist of inally instituted. The order of the testimony of experts. Great severance contemplated an amend caution should be exercised by the ment of the form of the applica- Courts in requiring parties to furtion, its substance remaining un- nish particulars in actions for damchanged, and the court had power ages resulting from negligence. It to make such order.

is usually impossible for a plaintiff Order of General Term, reversing to know, with any degree of preorder of Special Term reducing cision, what his proof will be, and assessment, reversed, and order of the bill of particulars would, in Special Term affirmed.

most cases of that character, be an Opinion by Finch, J. All con

All con- instrument of embarrassment and

injustice. In this case the discretion of the Court was wisely exer

'cised. BILL OF PARTICULARS. Order affirmed, with costs.

Opinion of Dykman, J.; BarN. Y. SUPREME COURT. GENERAL nard, P. J., and Pratt, J., con




George J. Muller, respt., v. The Bush & Denslow Mfg. Co., applt. SURETIES. SHERIFFS. Decided Dec., 1884.


TERM. FIRST DEPT. In an action to recover damages to plaintiff's

real estate, caused by an explosion of de Bernard Reilly, late Sheriff, fendants

' works, the plaintiff should not be respt., v. John Moffat, et al., required to furnish a bill of particulars.

applts. Appeal from order denying mo Decided Jan. 9, 1885. tion for bill of particulars. Action to recover damages sus

In an action by a sheriff against the sureties

on a bond indemnifying him from the contained by reason of injuries to

sequences of levying upon and selling unplaintiff's house, caused by an ex der an execution certain goods claimed by a plosion of defendants' oil works. third person to belong to him and not to the The complaint stated the inju

judgment debtor, the fact that the sheriff ries with considerable particularity

levied upon and sold more goods than was

necessary to satisfy the judgment is no deand the amount of damage sus fence when the costs and expenses incurred tained.

by the sheriff in an action for conversion Held, That this is not a case

brought against him by such third person

amount to the penalty of the bond. where plaintiff should be required to furnish particulars. The action Appeal from a judgment recovis for damages which plaintiff | ered on the verdict of a jury, and cannot specify with certainty; the from an order denying a motion amount will depend on proof to be for a new trial. furnished after examination of the The appellant, Moffat, had re

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covered a judgment of $93.64 | defendants were liable for the costs
against one O., and execution and expenses of the suit, and that
was issued thereon to plaintiff, such costs and expenses amounted
who was then sheriff of the County to the penalty of the bond.
of New York. There were cer P. W. Ostrander, for applts.
tain goods apparently belonging Henry Thompson, for respt.
to 0.,but claimed by his wife, upon Held, That, although the sheriff
which Moffat wished the sheriff to made an excessive seizure of prop-
levy, and for that purpose he and erty under the execution issued to
the other defendants executed a him upon the original judgment,
bond in the sum of $1,200 to in his action for indemnity upon the
demnify the sheriff against the bond could not for that reason
consequences of a levy upon and legally be defeated, for the differ-
sale of such property.

ence between the amount of prop-
After receiving the bond the erty which should have been
sheriff levied upon and sold said levied upon to satisfy the execu-
property,and realized from the sale tion and which was actually seized
the sum of $359.05, and that, after and taken did not enter in any
paying the amount due upon the form as an item in the recovery in
execution and his fees, together the action. That that, on the con-
with other charges made, left in trary, was made up entirely of
his hands a surplus of $83.12. the costs incurred in the action
Subsequently the wife of 0. brought against the sheriff, his
brought an action against the disbursements in the litigation,
sheriff to recover the value of the and the amount properly charge-
property so sold by him, in which able for the services of his attor-
she recovered judgment for such ney and counsel, and they would
value and $615.75 costs. This necessarily have been the same
judgment was paid by the sheriff even if he had levied upon no
and the costs included therein, to more property than was required
gether with a counsel fee of $500, to satisfy the execution and the
and other expenses amounted, in legal expenses. That the direc-
the aggregate, to $1,214.97. The tion of the verdict was entirely
sheriff then commenced this action right according to the facts proved
upon the bond of indemnity in the case.
given by defendants. The defense Judgment and order affirmed.
set up was that the levy was Opinion by Daniels, J.; Davis,
excessive. Upon the trial the P. J., and Brady, J., concur.
Court directed verdict for
plaintiff for $1,016.88, that being
the amount of the penalty of the

TAX SALES. bond, less $100, admitted to have N. Y. SUPREME Court. GENERAL been paid, and $3.12, proceeds of

TERM. SECOND DEPT. the sale remaining in the sheriff's hands, upon the ground that The People ex rel John Andrews,


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