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subd. 1. This cause of action is embraced | instrument to the clerk of the county of Livwithin the subdivision quoted, unless appel- ingston, by whom it was duly recorded on lant's contention be true that it is excepted that day. The assignor, by his assignment, from its operation by subdivision 5 of the preferred part of his creditors, dividing those same section. Subdivision 5 reads as fol- preferred into four classes, and directing the lows: "An action to procure a judgment, payment in full of each class in its order, but other than for a sum of money, on the provided that in case the assigned estate ground of fraud, in a case which, on the 31st should be insufficient to pay some one of the day of December, eighteen hundred and for- classes in full, then the creditors named in ty-six, was cognizable by the court of chan- such class were to be paid pro rata. The ascery. The cause of action in such a case is signor, after making provision for the paynot deemed to have accrued until the discov- ment of the preferred creditors, provided: ery by the plaintiff, or the person under "Lastly, the said party of the second part whom he claims, of the facts constituting the shall return the surplus of said net proceeds fraud." It will be observed that this subdi- and avails, after the payment of the said vision does not relieve the appellant from the debts, demands, and liabilities, as herein effect of the six-years period of limitation, be- provided, if any there shall be, to the said cause by its terms is expressly excepted a party of the first part, his executors, admincase where the action is brought to procure istrators, or assigns." The plaintiffs were a judgment "for a sum of money on the not preferred in the assignment, and when ground of fraud.” That result, and none it was made an action was at issue, and pendother, is what the plaintiff has sought to ac-ing, in the supreme court, between them, as complish in this action. Whether the defendants, in an equitable action, might have been held to be estopped from receiving the benefit of the statute of limitations, had it appeared that they had intentionally and successfully prevented the plaintiff from discovering the fraud until after the plaintiff's cause of action had been barred by lapse of time, it is not necessary for us to consider here. The complaint contains an admission that the plaintiff had such knowledge more than six years before the commencement of the action, and the trend of plaintiff's testimony is in the same direction. The judgment should be affirmed, with costs. All concur, except BRADLEY and HAIGHT, JJ., not sitting.

(116 N. Y. 410)

SUTHERLAND et al. v. BRADNER et al. (Court of Appeals of New York, Second Division. Oct. 29, 1889.)

ASSIGNMENT FOR BENEFIT OF CREDITORS.

A general assignment for the benefit of creditors, with preferences, provided that after paying the preferred claims the surplus should be returned to the assignors. Afterwards a supplementary assignment was executed, directing that such surplus should be applied to the claims of the general creditors. Held, that the original assignment, being void, was not validated by the supplementary assignment, nor could it be reformed so as to cut off the lien of a judgment recovered and docketed after its execution and before the execution of such supplementary assignment.

Appeal from supreme court, general term, fifth department.

This was an action brought by John L. Sutherland and Frances Sutherland, major, as executors, against Alonzo Bradner and Andrew J. Holden. On the 4th day of June, 1884, Alonzo Bradner executed, acknowledged, and delivered a preferential general assignment for the benefit of his creditors to Andrew J. Holden, as assignee, who on the same day executed and acknowledged an acceptance thereof, and delivered the completed

1Affirming 39 Hun, 134.

plaintiffs, and Alonzo Bradner and David McNair as defendants, in which the plaintiffs recovered June 16, 1884, a judgment, on contract against Bradner and McNair for $17,698.87 damages and costs, a transcript of which was on the next day duly filed and the judgment duly docketed in the office of the clerk of the county of Livingston, in which county Bradner and McNair then resided. June 17, 1884, an execution was issued to the sheriff of the county of Livingston, who had not returned it at the time of the trial of this action, being unable to collect it, or any part of it, by reason of said assignment. June 28, 1884, the assignor executed and acknowledged an instrument, which is called a "supplementary assignment," to his said assignee, referring to the original assignment, and reciting and directing as follows: "Whereas, it was intended by the party of the first part (the assignor) to provide for the payment of all of his creditors out of the avails of the property so transferred and conveyed, in whole or in part, as provided in said deed of assignment; and whereas, in copying the draft of said deed, the party of the first part, by mistake, and unintentionally, omitted to insert in the deed executed by him a clause authorizing the party of the second part (the assignee) therein to pay all creditors of the party of the first part, not specified in said deed as entitled to preference, out of any property or proceeds thereof remaining in his hands: Now, for the consideration mentioned in said deed, and fully to carry out the intention and purpose of the parties thereto, and to supply the omission, the party of the first part does hereby authorize and direct the said party of the second part, in case any property so conveyed and transferred to him, or the avails thereof, shall remain in his hands after paying and discharging the debts due to the creditors specifically named in said deed, and before any surplus shall be returned to the party of the first part, as in said deed of assignment provided, to pay all other debts of the party

of the first part in full, if the said property, or avails thereof, be sufficient for that purpose, and, if not, to pay the same pro rata in proportion to the amounts of such debts." June 30th this instrument was delivered to the assignee, who on that day executed and acknowledged an acceptance thereof, and delivered the completed instrument to the clerk of the county of Livingston, by whom it was duly recorded on that date. On the 14th day of July, 1884, this action was begun to have the assignment declared fraudulent and void as against the plaintiffs' judgment, which the plaintiffs asked to have declared a lien on the assignor's real estate, which was adjudged by the special term, and its judgment was affirmed by the general term. Defendants appeal.

James Wood and John A. Van Derlip, for appellants. Chas. J. Bissell, for respond

ents.

clear, on principle and authority, that an assignment void on its face cannot be reformed by an action so as to cut off a lien of a judgment recovered after the execution of the illegal assignment, and before its reformation. Whitaker v. Gavit, 18 Conn. 522; Whitaker v. Williams, 20 Conn. 98; Farrow v. Hayes, 51 Md. 504. This assignment, by its terms, hindered and delayed the creditors of the assignor, and it was not competent to show, for the purpose of cutting off the lien of the judgment, that no fraud was intended by the assignor and assignee. The judgment should be affirmed, with costs. All concur, except BRADLEY and HAIGHT, JJ., not sitting.

(116 N. Y. 655)

JUDSON v. VILLAGE OF OLEAN.1

(Court of Appeals of New York, Second Divis ion. Oct. 22, 1889.)

FELLOW-SERVANTS.

In an action for personal injuries it appeared that plaintiff and K. were employed by defendant as masons, to build a chimney; that it was part of that K. failed to nail some of the boards on the their duty to erect the staging round the chimney; scaffold firmly, and they fell, precipitating plaintiff to the ground. It did not appear that the materials furnished were in any way defective, or that K. was an incompetent person. Held that, as plaintiff's injuries were the result of the negligence of a co-employe, defendant was not liable.

Appeal from supreme court, general term, fifth department.

FOLLETT, C. J., (after stating the facts substantially as above.) A preferential assignment by an insolvent of all of his estate in trust for the payment of but part of his creditors, which provides that, after paying the creditors named, the remainder of the assigned estate shall be restored to the assignor, hinders and delays the unpreferred creditors, and it is void as against them. Goodrich v. Downs, 6 Hill, 438; Barney v. Griflin, 2 N. Y. 365; Collomb v. Caldwell, 16 N. Y. 484. Action for personal injuries by Michael The appellants concede that as against the Judson against the village of Olean. The deplaintiffs' judgment the assignment, in so fendant is a municipal corporation, incorpofar as it affects the real estate, is invalid, rated by chapter 110 of the Laws of 1882, and but urge that it was validated by the so-called authorized, by chapter 129 of the Laws of "supplementary assignment;" but, if not, 1883, to construct works for supplying it and that it should have been reformed upon proof its inhabitants with water. In 1883 defendthat the illegal clause was inserted through ant constructed works by which water is the mistake and inadvertence of the assignor pumped from a river to an artificial reservoir and assignee without fraudulent intent. The on a hill, and thence distributed through the instrument recorded June 30th, and called a "supplementary assignment," did not validate the original assignment as against the plaintiffs' judgment, which was recovered and docketed between the dates of the two instruments, and became a legal lien on all of the assignor's real estate situated in the county wherein it was docketed. Porter v. Williams, 5 How. Pr. 441; affirined, 9 N. Y. 142; Gates v. Andrews, 37 N. Y. 657; Schwartz v. Soutter, 41 Hun, 323, affirmed, 103 N. Y. 683, 9 N. E. Rep. 448; Averill v. Loucks, 6 Barb. 470; Metcalf v. Van Brunt, 37 Barb. 621; Smith v. Howard, 1 Sheld. 5; 20 How. Pr. 121. The defendants alleged in their answers, and offered to prove, that the assignor intended by his assignment to devote all of his property to the payment of his debts, and that the provision for the restoration to the assignor of the remainder, after the payment of the preferred creditors, was inadvertently inserted by mistake, and without intent to defraud the creditors of the assignor, which evidence was rejected, on the ground that it would afford no ground for a reformation of the assignment as against the lien of the plaintiffs' judgment. It is

village by pipes. One of the structures built is a brick building, containing pumps which with this building there is a square brick are operated by a steam-engine. Connected chimney, which provides a draught for the fires and an escape for their smoke. To facilitate the erection of the chimney a staging was erected around it by placing eight upright timbers, called "staging poles," around and four feet from the chimney. On each side of the chimney an inch board, 12 inches wide, called a "ledger-board," was nailed horizontally to three staging poles. Small timbers, three by four inches in size, called "put-logs," were laid transversely to the ledger-boards, one end of each resting on a ledger-board, and the other end in an opening left in the chimney. Across these put-logs boards were laid, forming a platform for supporting the materials used in the construction, and the workmen while engaged in their

work.

was from time to time reconstructed at a As the work progressed the platform ernoon of Saturday, October 6th, the platform About 3 o'clock in the afthigher elevation.

1Reversing 41 Hun, 637, mem.

the ledger-board when the brick was laid up to the scaffold, which fell, and he was in the act of nailing the board when the scaffold fell. I thought the jarring caused by this nailing caused it to fall. It was not unusual to nail another ledger-board while working on the scaffold." This evidence is not disputed, either directly or by inference, and it fully presents the plaintiff's theory of the cause of action, of his duty, and the duty of his co-employes.

was reconstructed in the manner described | the other scaffold, it jarred the staging poles, at an elevation of about 20 feet above the and jarred the nails loose where it fell. There ground. From the time this chimney was had been much more weight on it than at the begun until the accident occurred four brick-time when it fell. Fish commenced nailing layers worked on it,-S. S. Fish, who laid the north side or wall; Mr. Kinney, who laid the west side or wall; the plaintiff, who laid the south side or wall; and Frederick Fish, who laid the east side or wail. About 11 o'clock in the forenoon of Monday, October 8th, the south wall or side being further advanced than the north side, the plaintiff, upon the request of Frederick Fish, left the south side and went to the north side, and began laying brick. While the plaintiff was there engaged in work, near the north-west corner of the chimney, the north ledger-board parted from the north-west corner staging pole, broke, and the plaintiff fell about 20 feet to the ground, sustaining severe injuries, on account of which he seeks to recover damages in this action. On verdict judgment was rendered for the plaintiff, and the defendant's motion for new trial was denied. The judgment and order denying new trial were affirmed by the general term, and defendant appeals.

Frederick W. Kruse, for appellant. J. R. Jewell, for respondent.

This is not a case where an accident has befallen an employe by reason of defective machinery, tools, or appliances negligently furnished by the master for the use of his servant, or by the fall of a structure negligently constructed by servants engaged in another line or branch of employment; but it was caused by the negligent omission of Kinney, a co-employe, to sufficiently nail the west end of the north ledger-board to the north-west corner staging pole. The plaintiff was employed to construct, and engaged in constructing, with others, this scaffold, and, with Kinney, nailed this ledger-board in

ant or Fish negligently furnished unsuitable. materials, or negligently employed unskillful or incompetent co-servants. The undisputed evidence is that Kinney's neglect to sufficiently nail the west end of the ledger-board was the cause of the accident, and the denial of the defendant's motion for a nonsuit on the ground that the accident was caused by the negligence of a co-employe was error. The judgment should be reversed, and a new trial granted, with costs to abide the event. All concur, VANN, J., in result, and BRADLEY and HAIGHT, JJ., not sitting.

(116 N. Y. 658)

BARTON V. GOVAN.1 (Court of Appeals of New York, Second Division. Oct. 29, 1889.)

MALPRACTICE-EXPERT Evidence.

POTTER, J., (after stating the facts sub-place. There is no evidence that the defendstantially as above.) The defendant employed S. S. Fish to work as a mason on, and superintend the construction of, the chimney for daily wages. He was authorized to employ such laborers as he chose, and was to receive from the defendant their daily wages, and an advance of two shillings per day on masons, and of one shilling per day on common laborers. Fish hired and discharged the employes at will, and paid them such wages as he and they mutually agreed on, receiving afterwards from the defendant the amount paid out and the advance above mentioned. The plaintiff testified: "Building of a scaffold is part of a brick-mason's trade. It [the scaffold] was built on Saturday by Fish, me, and his son, Fred Fish, another mason, and two tenders. The other mason was Kinney. I drove nails in center and one end of ledgerboard that broke. There was another man nailing the other end, and I supposed he drove nails enough to hold it. Fish was holding the ledger-board that broke in the middle, while I was nailing one end and Kinney the other. I don't know whether the board broke or nails came out. I did not say that I could not see if it was nailed all right, because Fish stood in the way. He asked me if it was nailed all right, and I told him I thought so. It was the old man Fish who asked me that. It was before the scaffold broke. It was on Saturday before, after we had got all through nailing. The nails used were eights or tens; I think they were tens. Scaffold was prop erly constructed, as far as I could see. It was constructed in same way scaffolds are usually constructed for this kind of work. Braces were all right. I think that when Fish commenced nailing the ledger-board for

1. In an action for negligence in setting and treating an oblique fracture of the leg, whereby the leg was shortened, a witness was asked whether he would regard it as incredible if a surgeon should testify that he had measured the leg before fracture, and another should testify that he had measured it after the fracture, and the measurements showed the leg was not shorter after the fracture. "rather incredible." He was then asked if it was He replied that he should say it was possible to cure a transverse fracture without shortening, and replied that it was. Held, that that the witness did not intend to give an opinion the questions and answers, taken together, showed as to the credibility of testimony, and were properly admitted..

if the method of setting and treating the leg was 2. In such action, when an expert, being asked good or bad surgery, replied that it was good surgery, and then went on to explain that he well understood that a country physician should not have all the appliances of a city hospital, and must use the best he can obtain, a motion to strike out the

1Affirming 42 Hun, 655, mem.

answer as unresponsive to the question, since it evidently referred to the explanation advanced by the witness, was properly sustained.

Appeal from supreme court, general term, second department.

This action was brought by John J. Barton against William Govan for malpractice. Verdict was rendered for plaintiff, and judg ment entered accordingly. This judgment was affirmed by the general term. Defendant appeals.

he was stopped by the plaintiff's counsel who moved to strike out the answer as not responsive to the question, but was in the nature of an argument or an excuse for the defendant. The motion to strike out was granted, and an exception was taken by the defendant. If it was the intention of the court for complaint; for the first clause of the answer was responsive to the question. But it does not appear to us that the court intended,

to strike out the whole answer, there is cause

Calvin Frost, for appellant. David A. or was understood, to strike out that portion Haynes, for respondent.

of the answer. The doctor, after having answered the question, proceeded to state his understanding why a practicing physician in the country could not have first-class appliances for the treatment of fractures. It was to this portion of the answer that the motion to strike out evidently related; for it was in the nature of an argument or an excuse for the defendant, as stated in the motion to strike out. But, even if we should construe the ruling of the court as striking out the whole of the answer, we should still be of the opinion that the ruling was cured by the subsequent testimony, which in much detail again supplied all that was responsive to the

HAIGHT, J. This action was brought to recover damages which it is alleged the plaintiff sustained by reason of the negligent and unskillful conduct of the defendant, a physician and surgeon, in setting and treating a fracture of plaintiff's leg. The fracture was an oblique one in the upper third of the thigh bone. The broken parts were allowed to slip over, one upon the other, so as to overlap, making a deformity, and shortening the leg about two inches. There was evidence given tending to show that the broken parts were not properly placed together, and there re-question. tained, and that there was not proper exten- The next exception to which our attention sion applied so as to overcome the muscular contraction of the limb. Upon this subject there was a conflict in the testimony, which was properly submitted to the jury; and the verdict must be deemed final, so far as this court is concerned. The questions which we are called upon to review arise on the exceptions to the admission and rejection of evidence.

has been called relates to a question put to Dr. Mursick, and is as follows: "Suppose that the surgeon testified, or that a surgeon testified, that he had measured the leg before this fracture, and that another surgeon testified that he had measured the leg after this fracture, and the measurements showed that there was no shortening on account of the second fracture, would you regard that as at It is contended that the hypothetical ques- all incredible?" The first answer was that tion put to Dr. Bailey, one of the plaintiff's he should say it was "rather incredible." witnesses, should have been excluded, for He was then asked: "Question. That is, you the reason that it assumed a state of facts think that it is impossible for a transverse which were not proven. We do not under- fracture to be cured without a shortening?" stand that there is any obscurity or conflict To which the witness answered: "No; I do in reference to the rule that hypothetical not say that. A transverse fracture may be questions must be based upon facts fairly cured without shortening." The first queswithin the scope of the evidence. We have tion only was objected to. If it is undernot, however, had our attention called to any stood that the witness was called upon to statement of fact in the question that is not give his opinion as an expert as to the credwithin the evidence, and in our examination ibility of the plaintiff's witnesses, the quesof the testimony we are not able to point to tion would be objectionable, and yet the deany such statement, and we consequently fendant would be unable to avail himself of cannot say but that there was some evidence the exception, for the reason the answer was to sustain each fact assumed in the question. in the favor of the defendant, and did him Upon the trial, Dr. Carnochan was sworn no harm. But we do not think it was the as a witness on behalf of the defendant, and object or intention of the plaintiff to call uptestified that he had heard the defendant de- on the witness to give his opinion as to the scribe his treatment of the plaintiff's limb. credibility of his testimony. The intention He was then asked his opinion as a surgical is made apparent by the question which folexpert as to whether it was good or bad sur-lowed. He was seeking to show that a transgery, and answered that under the circum- verse fracture could be cured without shortstances he thought it was very good surgery.ening the limb, by the opinion of this witHe then proceeded to state that he could well understand that a gentleman practicing in the country should not have the appliances of a first-class city hospital,-that he has neither the appliances nor the aids, and must adopt the next best alternative; whereupon

ness. It does not appear to us that there was such an error as necessitates a new trial. The judgment should therefore be affirmed, with costs. All concur, except FOLLETT, C. J., who concurs in result, and BROWN, J., not sitting.

(116 N. Y. 405)

HOPNER v. MCGOWAN.1

tioned, was acting pursuant to any rules or

(Court of Appeals of New York, Second Divis- regulations of the court, or of the board of

ion. Oct. 29, 1889.) FALSE IMPRISONMENT.

1. In an action for false imprisonment it appeared that the plaintiff had been arrested for an assault, and taken before a magistrate, who was at the time engaged in the trial of another cause. The defendant, an assistant clerk of the court, directed that he be confined in an adjoining room, set apart for prisoners, for a few minutes, until the complaint was prepared, when he was admitted to bail. Held, that plaintiff had no cause of

action.

2. In such action evidence as to the disposition made by the grand jury of the charge against the plaintiff was properly excluded.

Appeal from superior court of New York city, general term.

police justices, or in performance of any specific authority conferred upon him by his superior. It is urged that his direction to place the plaintiff in the prisoners' room was wrongful, and charged the defendant as for unlawful imprisonment of the plaintiff. If the plaintiff's arrest was without authority, and his custody by the police officer illegal, it might be seen that the defendant would, by causing the execution of his direction, be rendered liable as a participant in the unlawful arrest and custody of the plaintiff. But it must, upon the facts and exceptions as presented by the record, be assumed that the arrest of the plaintiff was legal. It was made while he was engaged, apparently, in the commission of a breach of the peace; that is to say, committing an assault upon Graham. This supported the right of the officer in mak

Action for false imprisonment, brought by Lewis Hopner against John E. McGowan. There was verdict for defendant, and judgment accordingly, which judgment was affirmed by the general term. Plaintiff ap-ing the arrest and in taking the plaintiff bepeals.

James B. McKewan, for appellant. Gratz Nathan, for respondent.

BRADLEY, J. The action was brought to recover damages for alleged false imprisonment. The plaintiff was arrested without warrant by a member of the police force of the city of New York, and taken into the fifth district police court, in which the defendant was assistant of the clerk. The defendant and the police justice of the court testified that the latter was then engaged in the consideration of some other case before him. The plaintiff, with one Graham, who, under the direction of the police officer, accompanied him to the court, was taken to the desk of the defendant in the court-room, who proceeded to take a statement of the case upon which the plaintiff had been arrested, and while the police officer was making his state-tation for the action of the court or magisment the defendant, apparently annoyed by the interruption of the plaintiff, directed the officer to put the plaintiff in a room in which prisoners were kept, and he, with Graham, was taken there, where he remained a few minutes until the complaint was prepared, which was made by Graham against the plaintiff for an alleged assault and battery. Thereupon the plaintiff was brought before the court or magistrate, and discharged from custody on giving bail. The cause of the plaintiff's complaint against the defendant was the direction of the latter, upon which the plaintiff was placed in the adjoining room, in which prisoners were usually detained, temporarily, until their arraignment before the court. The clerk's assistants for those courts are appointed by the board of police justices, and they are to obey the reasonable direction of the police clerks, subject to the proper orders of the police justices and of such board. Laws 1882, c. 410, § 1546. It does not conclusively appear that the defendant, in giving the direction before men

fore the magistrate or court, although there may have been circumstances which would constitute a defense for him upon the hearing or trial of the charge. He submitted to the arrest, and was immediately taken before the sitting magistrate, or his court, as required by the statute. Id. § 279. And until he could be there arraigned it was within the power of the police officer to place the plaintiff in the prisoners' room without any direction of the court or its officer. No legal rightof the plaintiff was therefore violated by placing and temporarily detaining him there to await the opportunity to bring his case in an orderly manner before the police justice. The defendant, as the assistant of the clerk, had his duties, whatever they were, to perform. In this instance he was attempting to ascertain the facts upon which to prepare the complaint with a view to the proper presen

1Affirming 22 Jones & S. 98.

trate upon it of the charge on which the arrest was made. That service of the defendant, it may be assumed, was legitimately within his duties, and it was but reasonable that he should have the opportunity to do it without unnecessary interruption. The cause which induced him to direct the officer having the custody of the plaintiff to take him to the room referred to evidently did not spring from any purpose to make his detention oppressive. It was to enable him to obtain the information requisite to prepare the complaint for the presentation of the case to the magistrate. While it is reprehensible to render the custody of persons arrested unnecessarily uncomfortable, and for abuses in that respect an action may lie, there must be some discretion in the officer making arrests as to the nature of the restraint which may be essential to the security of the custody of prisoners. There was, in the present case, probably no ground for apprehension that the plaintiff would attempt to escape from the custody of the officer, but it is not seen that it could be treated as any abuse of the power of the police officer to place the plaintiff in

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