and 127 New York State Reporter eye, caused by an interference with the circulation of the eye, which causes diminished vision. The plaintiff admitted that she had prior to the accident four slight attacks of rheumatism, without fever, which did not disable her from performing her school work; and there is evidence indicating that she had rheumatic symptoms or tendencies, and that she had prior to the operation experienced some difficulty or stiffness with one of her hands, and with both thereafter, and she had some deformity or enlargement of the joints of the wrist and of the fingers, which the medical evidence indicates was due to rheumatism. There is also evidence indicating that she had slight hardening of the arteries, incident to age, known as "arteriosclerosis," but not to the extent usually found in persons of her age. Opinions were given by experts, of experience and standing, summoned by the defendant, that people of the plaintiff's age often have glaucoma, caused by the hardening of the arteries, and that it may be caused by rheumatism, and that, in their opinion, while a subluxation of the lens might have been caused by a blow on the head, it would require a more severe blow than is indicated by the testimony in this case, and that, if the subluxation was caused by the injury, the difficulty originally experienced with the vision would have continued more or less; that the sight itself would have been affected to some extent and materially before it did in this case; and that the condition of the eye would have been discoverable, and would have ultimately resulted in the formation of a cataract. On the other hand, Drs. O'Connell and Hepburn, with full knowledge of the history of the case, adhered firmly to the opinion that the blow upon the head was a sufficient cause to produce the subluxation and glaucoma, and that neither would have been necessarily discoverable by an examination in the meantime; and Dr. Hepburn is positive in his opinion that neither rheumatic tendencies, nor the hardening of the arteries incident to advanced age, would have caused the subluxation which he discovered; and he further testified that the reason that he concluded that the blow on the head "had something to do with the glaucoma," and finally the loss of sight of both eyes, was because he found the subluxation, which could not have been caused by the glaucoma, and because he found "a few tags of adhesion between the lens capsule and the iris, immediately in front of it, which were not These adhesions were caused by a very low grade of inflammatory action-probably caused by the original injury.” And he also gives it as his opinion that the rheumatism, to the extent that the plaintiff had it, would not result in glaucoma. The competency and integrity of Dr. Hepburn are not questioned. His testimony is clear and positive that he found this subluxation of the lens, and indications that it was of long standing. The jury were justified in believing this testimony. The experts called by the defendant were unable to account for the subluxation of the lens, except on the suggestion that it might have been caused by slip of the surgeon's knife in performing the operation for glaucoma; and yet all conceded Dr. Hepburn's skillfulness, and none admitted new. * * * that he himself had ever caused a subluxation by an operation, and their only basis for the suggestion was an intimation by textwriters that it might thus be caused. With that fact-the existence of the subluxation-established in the case, most of the expert testimony introduced by the defendant is of little value. We are of opinion that the testimony of the plaintiff, showing a continuity of pain in this eye since the accident, supported and sustained by the medical testimony introduced in her behalf, fairly sustains the finding of the jury that the glaucoma of the left eye resulted from the injuries she received through the negligence of the defendant. It is undisputed that the glaucoma in the left eye destroyed the sight of that eye and communicated to the right eye, ultimately resulting in permanent total blindness. The defendant being responsible for the plaintiff's total blindness, it needs no argument to show that the verdict is not excessive. It follows, therefore, that the judgment and order should be affirmed, with costs. All concur, except McLAUGHLIN, J., who dis sents. W. & J. SLOANE v. TIFFANY. (Supreme Court, Appellate Division, First Department. April 20, 1905.) 1. EXECUTION-APPLICATION FOR SPECIAL EXECUTION-NECESSITY OF NOTICE. Application for execution under Code Civ. Proc. § 1391, authorizing a special execution to be issued on a judgment for necessaries against the income from trust funds or profits due or to become due the judgment debtor, must be made on notice to the judgment debtor and the trustees of the fund against which execution is sought. 2. CONSTITUTIONAL LAW-VESTED RIGHTS-LEGISLATIVE INFRINGEMENT. Code Civ. Proc. § 1391, authorizing a special execution to be issued on a judgment for necessaries against the income from trust funds or profits due or to become due the judgment debtor, if intended to affect rights acquired under trusts created and in operation before its passage, amounts to an unconstitutional destruction of existing property rights. Appeal from Special Term. Action by W. & J. Sloane against Burnett Y. Tiffany. From an order vacating an order under which a special execution was issued, plaintiff appeals. Affirmed. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ. E. W. McGuire, for appellant. B. Tuska, for respondent. PATTERSON, J. The plaintiff, a creditor of the defendant, recovered a judgment "wholly for necessaries sold by it to the defendant," and an execution was issued against the defendant's property, and was returned unsatisfied. Thereafter it made an application to the court for leave to issue an execution under section 1391 of the Code of Civil Procedure, and it was shown that the defendant, the judgment debtor, was in receipt of an income from a trust fund created by the will of his father; that the income from such. and 127 New York State Reporter trust fund amounted to $18,000 a year. The trustees, who were also the executors of the will of the defendant's father, are named in the moving papers. It is provided by section 1391 of the Code of Civil Procedure that: "Where a judgment has been recovered wholly for necessaries sold, * and where an execution issued upon such judgment has been returned wholly or partly unsatisfied, and where any income from trust funds or profits are due and owing to the judgment debtor or shall thereafter become due and owing to him, to an amount exceeding twenty dollars per week, and where no execution issued as hereafter provided in this section is unsatisfied and outstanding against said judgment debtor, the judgment creditor may ap ply to the court in which said judgment was recovered, and upon satisfactory proof of such facts, by affidavit or otherwise, the court * an order directing that an execution issue against the trust funds or profits of said judgment debtor, and on presentation of such execution by the officer to whom delivered for collection to the person or persons from whom such income from trust funds due and owing, or may thereafter become due and owing to the judgment debtor, said execution shall become a lien and a continuing levy upon the income from trust funds which shall not exceed ten per centum thereof, and said levy shall be a continuing levy until said execution and the expenses thereof are fully satisfied and paid, or until modified." * must grant income from * are The plaintiff made an ex parte application for an execution under that section of the Code, and it was granted. Thereupon the defendant moved to have the execution vacated. The execution was vacated, and the plaintiff appealed. On the motion several grounds were urged for vacating the order for execution to issue, but one of which it is necessary to consider. The application for the execution was, as said, made ex parte. It is claimed that, under the phraseology of section 1391 of the Code of Civil Procedure, it was proper to make it in that manner. There is nothing in the section which directs the manner in which the judgment creditor shall apply to the court, but that does not necessarily imply that such application may be made ex parte. This provision relates not only to depriving the beneficiary of a portion of the income provided for his support, but it also affects the duty of trustees, and they, as well as the beneficiary, are entitled to notice before interference with the rights of either is justified. In Neuman v. Mortimer, 98 App. Div. 67, 90 N. Y. Supp. 526, we said, "As a question of practice, all applications under section 1391 of the Code of Civil Procedure must be upon notice." The debtor has a right to be heard before an execution under this provision of the Code is allowed. We are of opinion that the trustee is also entitled to be heard on such an application. The order vacating the execution should therefore be affirmed, with $10 costs and disbursements. INGRAHAM, MCLAUGHLIN, and LAUGHLIN, JJ., concur. VAN BRUNT, P. J. In addition to the reasons assigned by Mr. Justice PATTERSON for affirming the order appealed from, it seems to me that, if the part of section 1391 of the Code under consideration was intended to affect rights acquired under trusts created and in operation before the passage of the act, it would be unconstitutional. The Legislature has no power to destroy existing property rights by legislation. DIEHL V. DREYER. (Supreme Court, Appellate Division, First Department. April 20, 1905.) APPEAL COSTS. Where on appeal the cause was reversed, with costs to abide the award of costs by the final judgment, and after the commencement of the trial the plaintiff was permitted to amend his complaint so that it materially changed the issues, it was proper to grant the amendment on condition that plaintiff pay not only the costs of the motion, but the costs on the previous appeal. From an or Appeal from Special Term, New York County. Action by John C. Diehl against Peter B. Dreyer. der in favor of defendant, plaintiff appeals. Reversed. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ. Herbert A. Heym, for appellant. E. Ormond Power, for respondent. LAUGHLIN, J. Upon a former appeal an order referring the issues herein was reversed by this court, with $10 costs and disbursements, and $10 costs of the motion, with this proviso: "The said costs to abide the award of costs by the final judgment." 82 N. Y. Supp. 770. The issues were then brought to trial before the Special Term. A motion made upon the trial by the plaintiff to amend the complaint was denied, but leave was granted to apply to the appropriate part of the Special Term for such relief. The application was made pursuant thereto, and an amendment was asked materially changing the issues. The motion was granted upon condition that the plaintiff pay $10 costs of the motion "and all taxable costs to date." The defendant included in the bill of costs which he sought to have taxed under the order the costs allowed upon the appeal, and the same were allowed and taxed by the clerk. The order directing the retaxation commands the clerk, on retaxing the costs, to disallow these items. We are of opinion that the costs were properly taxed. Bowen v. Sweeney, 66 Hun, 42, 20 N. Y. Supp. 733, 734. When this court on the former appeal allowed the costs to the defendant to abide the event, it was not contemplated that the issues would be changed. The Special Term, in imposing conditions on allowing an amendment of the pleading which materially changed the issues, was at liberty, notwithstanding the order of this court, to require that the party desiring the favor of the court should pay all the taxable and 127 New York State Reporter costs, including the costs of the appeal. This was not only authorized, but it was proper, since the issues were thereby changed, and the defendant was deprived of an opportunity or chance of recovering on the issues as they stood when this court so awarded costs. It was manifestly the intention of the learned justice presiding at the Special Term, as shown by the order, to require, as a condition of allowing the amendment, present payment by the plaintiff of all taxable costs of the action to date, precisely as if the defendant had succeeded on the issues, and was then taxing the costs of the action. The order should therefore be reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur. PRICHARD et al. v. SIGAFUS et al. (Supreme Court, Appellate Division, First Department. April 20, 1905.) 1. ATTORNEY AND CLIENT-EMPLOYMENT OF ATTORNEY-EVIDENCE. In an action on a foreign judgment, evidence held insufficient to show that defendant had ever employed the attorney who appeared for her in the action in which the judgment was rendered. 2. SAME RATIFICATION OF EMPLOYMENT EVIDENCE. In an action on a foreign judgment, evidence considered, and held insufficient to show that defendant had ratified the employment of the attorney who appeared for her in the action in which the judgment was rendered. 3. AGENCY-RATIFICATION. Before a principal can be held to have ratified the unauthorized act of his assumed agent, he must have full knowledge of the facts. [Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Agent, §§ 627-633.] Appeal from Trial Term, New York County. Action by George W. Prichard and another against Augusta C. A. Sigafus and others. From a judgment in favor of plaintiffs, and from an order denying a motion for a new trial, defendant Sigafus and another appeal. Reversed. Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ. Henry B. Johnson, for appellants. PATTERSON, J. The plaintiffs' assignor recovered a judgment in ine Fifth Judicial District of the territory of New Mexico against James M. Sigafus, Augusta C. A. Sigafus, J. Everett Bird, and E. Marion Bird, who are also the defendants herein. It is alleged in the complaint in the present action that all the defendants in the action in New Mexico duly and voluntarily appeared by James E. Wharton, their duly authorized attorney, and filed a plea or answer therein, and that thereupon a trial was had in accordance with the law then existing in the territory of New Mexico, and that the court had jurisdiction of the subject-matter and each of the defendants therein; that such |