The

building was 2 feet 11 inches in width, together constituting a frontage of 25 feet, which accords with the frontage of said lot on Bleecker street, as given in all the deeds, including and subsequent to the deed of 1838. More than 40 years prior to this action, 5 houses were erected on the plot of ground now belonging to the defendant, the most easterly wall thereof constituting during such period the westerly boundary of the alley-way, as maintained and used by the plaintiffs and their predecessors. Such boundary was further maintained by a fence, which was a continuation of the line of the wall extending from the house towards the rear of the lots, and to the easterly side of a shed, occupying the rear of the lot claimed by plaintiffs. Within the shed there was a partition wall built in line with the fence, commencing at a point inside the shed opposite the point where the fence met the shed on the outside. Back of the alley-way was a cistern on plaintiffs' premises, which extended easterly up to the line of the wall of defendant's house. There was a door at the entrance to the alley-way on Bleecker street, adjusted to a door frame. The westerly side of the door frame was a strip of wood, fastened to the defendant's house. The door had a lock, and, when locked, the bolt went into such strip of wood. When the plaintiffs took possession under their deed, the key of the alley-way door was given to them, and thereafter kept in their exclusive possession and control. wall, fence, and alley-way door left the defendant without means of access to any portion of the premises constituting the alley-way. We have thus briefly alluded to some of the facts found by the trial court, which, as we think, are adequate to justify a finding that title to the alleyway had, prior to the commencement of this action, been acquired by adverse possession. While the trial court entertained the same view, it found, as a conclusion of law, "that this court, sitting in equity, has no jurisdiction of the cause of action sought to be proved in this suit," and therefore directed judgment for the defendant. Assuming plaintiffs' title to be established, the authority of the court, in a suit in equity to interfere and prevent an appropriation of their lands to the use of another for building purposes, cannot be longer questioned, not only for the purpose of avoiding multiplicity of actions, but also because they were without adequate remedy at law. The plaintiff Jean Baron was a wholesale wine merchant and importer of wines, which he purchased in casks, using the alley-way for the purpose of conveying the casks from the street to the rear of the yard; thence they were taken into his cellar for bottling, and this the erection of defendant's wall would wholly prevent. This special injury could not well be provided for by any rule of damages. Again, it would be impracticable, if not impossible, for the plaintiffs in ejectment to regain actual possession of that portion of the alley-way occupied by the wall. The sheriff might not regard it as bis duty to deliver possession by taking down the wall, which

would burden him with the risk of injury to other portions of defendant's building not included within the nine inches. But in equity the obligation to remove can be placed directly on the party who caused the wall to be erected, and it frequently affords preventive relief against the commission of trespasses, such as the excavation of complainant's soil by an adjoining owner; the destruction of his wall in building operations on adjacent premises; and the encroachment of his rights by the diversion of a stream of running water from its natural channel. Story, Eq. Jur. §§ 928, 929; High, Inj. §§ 704, 707; Creely v. Brick Co., 103 Mass. 514; Corning v. Iron and Nail Factory, 40 N. Y. 191; Fox v. Fitzsimons, 29 Hun, 574; Wheelock v. Noonan, 108 N. Y. 179, 15 N. E. Rep. 67; Avery v. Railroad Co., 106 N. Y. 142, 12 N. E. Rep. 619. It appears to have been the view of the trial court that the circumstances of the case made it proper to refuse plaintiff's relief in equity until after his right to the locus in quo had been established at law. Such is the general rule in courts of equity, but it has exceptions. Troy, etc., R. Co. v. Boston, etc., R. Co., 86 N. Y. 128. Judge FINCH, speaking for this court in Wheelock v. Noonan, supra, said that" the modern system of trying equity cases makes the rule less important. * * Indeed, I am inclined to deem it more of a rule of discretion than of jurisdiction." If the question whether the plaintiff ought to have been required to establish his title in an action at law were properly reviewable here, it need not he considered, because the defendant did not by his answer object that the plaintiffs had an adequate remedy at law. After parties have submitted to the jurisdiction of the court, the plaintiff will not be turned out to seek his remedy elsewhere, when the objection is taken for the first time at the trial. Grandin v. Le Roy, 2 Paige, 509; Wiswall v. Hall, 3 Paige, 313; Le Roy v. Platt, 4 Paige, 77: Cox v. James, 45 N. Y. 557; Town of Mentz v. Cook, 108 N. Y. 504, 15 N. E. Rep. 541. The order should be affirmed. All concur.

*

(127 N. Y. 661)

STOUTER V MANHATTAN R. Co. (Court of Appeals of New York, Second Divis ion. June 2, 1891.)

INJURIES TO PASSENGERS-EVIDENCE-EXPERT

OBJECTIONS.

1. Where, in the trial of a suit for personal injuries, occasioned by an engine running into the coach where plaintiff was sitting, a diagram representing the scene of the accident is shown to the engineer who operated the engine, and he states that it is correct except that it shows a chock-block at the junction of the tracks, which was not there when the accident happened, a judgment for plaintiff will not be reversed on the ground that such statement was evidence that after the accident defendant had placed a chockblock at the junction of the tracks to prevent further accidents.

2. A general objection to a question put to the engineer as to whether the accident would have happened had there been a chock-block at the junction does not raise the point that the evidence is inadmissible because it had not been shown that the junction was previously unsafe, or that chock-blocks were in practical use.

3. It is competent for a physician to state

that from his observation of the injury, which he describes, he believes that an abscess which subsequently developed in plaintiff's breast resulted from the injury.

Affirming 6 N. Y. Supp. 163.

Appeal from a judgment of the general term of the supreme court in the second judicial department, affirming a judgment entered on a verdict, and also affirming au order denying a motion for a new trial. Action for personal injuries, caused, as alleged, by the negligence of the defendant. On December 31, 1887, the plaintiff was a passenger upon a train operated by the defendant going north on the main branch of its elevated railroad in Third avenue. At Thirty-Fourth street, a side track running to the ferry at the foot of that street is connected with the main line by means of a curve. As the car in which plaintiff was seated passed over the frog at the junction of the two lines at Thirty-Fourth street, it was run into by an engine on the side track, and she was injured by the collision. Further facts appear in the opinion.

Samuel Blythe Rogers, for appellant. Martin J. Keogh, for respondent.

VANN, J.. (after stating the facts as above.) The defendant claims that the trial court erred in allowing evidence to be given by the plaintiff that, after she was injured, a stop-block was placed upon the side track as a precaution against further accidents. A careful inspection of the record, however, fails to show any evidence of that kind. The nearest approach to it was when the engineer who operated the engine that collided with the train was on the stand as a witness for the plaintiff. On being asked if a diagram shown bim correctly represented the scene of the accident, he replied that it did, with one exception. When asked to state the exception he answered: "There is a portion of a chock-block here at present," obviously referring by "here" to the map, which was the only subject of inquiry. The defendant's counsel moved that the answer be stricken out, without stating any ground, and took an exception to the denial of his motion. The next question that was answered by the witness was put by the trial justice, who asked: "What is the difference between its state on the 31st of December and [the] state of it as represented on that diagram?" The witness answered, under objection and exception: "That represents a chock-block as being there." The object of this testimony was simply to prepare the way for the introduction of the map, and the substance of it was that there was a chockblock represented on the map that was not on the track at the time of the accident; but there was no evidence that a chock-block was placed on the track after the accident. Before the map was put in evidence the representation of the stopblock was struck off by direction of the trial judge, who, in giving the direction, said: "If it is intended to show that any change has been made there now, that is inadmissible; and, not being susceptible of direct testimony, the court does not think it fair that it should get in indirect

to

ly as marked on the diagram, so that will be stricken off." While the course pursued at the trial may have suggested to the jury that a block was placed on the track after the accident, there was no evidence before them upon the subject; and it cannot be presumed, under the circumstances, that they were influenced by that which was merely suggested, but not proved. Questions excluded upon objection frequently suggest something that the jury have no right to consider; but this, in the absence of persistence amounting abuse, is not a ground for reversal, because they are presumed not to have considered it. If a party fears that they may be influenced by anything outside of the case, he should ask that they be instructed to disregard it. Gall v. Gall, 114 N. Y. 109, 122, 21 N. E. Rep. 106; Holmes v. Moffat, 120 N. Y. 159, 24 N. E. Rep. 275. After the plaintiff had rested, the same witness was called by the defendant, and gave evidence in its behalf as to his efforts to stop the engine by applying the brakes and opening the throttle. On his cross-examination, after proof had been made without objection that there was no chock-block on the side track when the accident happened, he was asked: "If a stop-block had been there, would your train have collided with the Third-Avenue train, in your opinion?" A general objection was interposed and overruled, when the witness answered, “I don't think it would." This ruling is challenged by the defendant, upon the ground that no proof was previously made that the side track had been found by experience to be unsafe, or that chock-blocks were in practical use for railway junctions. This question, however, is not before us, because it cannot be raised by a general objection. If the ground now relied upon had been made the basis of an objection, non constat that which is insisted upon as wanting would have been supplied, as it was possible to supply it by evidence. "It is the well-settled law," as this court has held, "that objections to testimony, without assigning any ground therefor, will be disregarded, unless it clearly appears that the objection, if properly made, could not have been obviated.” Levin v. Russell, 42 N. Y. 251, 255. This principle should always be applied when the defect is not so radical as to be incapable of being remedied." Cary v. White, 59 N. Y. 336, 310; Bergmann v. Jones, 94 N. Y. 51, 58. A previous question, differ. ent in form, but similar in substance, put to the same witness, was objected to as immaterial, irrelevant, and incompetent; but it was not answered. The counsel for the defendant now insists that the | general objection to the question that was answered should be regarded as including the more specific objection to the question that was not answered, because the former immediately followed the latter. Even on this basis, however, as the evidence offered was not in its essential nature incompetent, the objection was too general. It did not call the attention of the court to the point that further proof was insisted upon as necessary before the question could be properly answered. As

*

*

*

we have recently held, when a party "calls upon the court to make a ruling in his favor, he must specify with reasonable clearness the point that he desires considered and decided, in order to predicate error upon an exception to the ruling against him. Sterrett v. Bank, 122 N. Y. 659, 662, 25 N. E. Rep. 913. A physician called by the plaintiff testified that he saw her on the day she was injured, and found that her sixth rib was broken near its junction with the cartilage, and just below the left breast. There was a bruise over the seat of the fracture that extended a little above it. That she was confined to her bed for about six weeks, and that about three months after he first saw her she gave birth to a child. He was then asked this question: “You can tell any trouble that you, as a physician, can connect with the injury,-any trouble that occurred after the birth of the child that you, as a physician, believe was a result of the original injury?" Objection was made by the defendant to this question, as too remote, irrelevant, and incompetent, but the witness was permitted to answer as follows: "After the birth of the child she had an inflammation of the breast,-of the left breast,-which resulted in an abscess in the breast, the formation of pus matter, which caused her a great deal of pain and suffering for several weeks. The breast broke once and was lanced twice. The formation of the abscess was in the very region where the bruise was that I saw immediately after the accident,-right in the neighborhood of the fractured rib. I attributed the cause of the abscess and the inflammation to that bruise. She suffered from that for several weeks. She finally recovered from it, and I have not seen her since." No objection was made to the form of the question, and, if the answer contains nothing objectionable, the ruling may be sustained, even if the question was improper. The witness confined himself to facts within his knowledge for the greater part of his answer, but in connecting the inflammation and abscess with the bruise he expressed an opinion upon a point which the defendant insists was not prop. erly the subject of expert evidence. The question presented, therefore, is whether the physician, after testifying to his per. sonal observation of the bruise and the fracture and the subsequent inflammation and abscess in the same place, could state that, in his opinion as an expert, the latter were caused by the former. The opinion of a medical expert, based upon facts within his own knowledge and observation, as to the nature of the affection from which a party is suffering, and whether it was produced by violence or disease, has long been held competent by this court. Matteson v. Railroad Co., 35 N. Y. 487.491. The cause or effect of a physical injury can frequently be proved in no other way than by the opinions of those specially qualified by experience and study, based upon facts in evidence, and either known to the witness or assumed to be true. Filer v. Railroad Co., 49 N. Y. 42, 46; Lawson, Exp. Ev. 107. The cases are numerous which hold that it is competent to

show by the opinions of medical experts that an injury received was the cause of the condition of the person injured, and, among them, some recently decided by this court. McClain v. Railroad Co., 116 N. Y. 459, 468, 22 N. E. Rep. 1062; Turner v. City of Newburgh, 109 N. Y. 301, 308, 16 N. E. Rep. 344; Ehrgott v. Mayor, etc., 96 N. Y. 264. The criticism that the question did not limit the opinion to the facts proved does not apply to the answer, which first states the fact, and then the opinion based thereon. We find no error in the record that requires a reversal, and the judgment should therefore be affirmed. All concur.

(127 N. Y. 143)

SMITH et al. v. OGILVie. (Court of Appeals of New York, Second Division. June 2, 1891.)

SETTING ASIDE SETTLEMENT - BURDEN OF PROOF -TRUSTS.

1. A contract between two firms, whereby the first agrees to allow the second to publish certain stories belonging to the first, in consideration of the payment by the second firm of a roy alty on each volume sold, does not establish a fiduciary relation between the parties, and, in a suit by the first firm against the second to impeach on account of fraud settlements made under the contract, it is incumbent on plaintiff to prove the fraud.

2. The fact that one member of the first firm was also a member of the second does not place the second firm in a fiduciary relation towards the first, so as to cast the burden of proof on the second firm to show that settlements made after the death of this member were free from fraud. Affirming 6 N. Y. Supp. 233.

Appeal from supreme court, general term, first department.

This action was brought by the plaintiffs as successors of the firm of Street & Smith, against the defendant as survivor of the firm of J. S. Ogilvie & Co., to set aside as fraudulent a certain settlement made between the plaintiffs and defendant in reference to royalties agreed to be paid by J S. Ogilvie & Co. under an agreement with the predecessors of the plaintiffs. Prior to and at the time of the agreement providing for the payment of royalties, Francis S. Street and Ormond G. Smith formed the copartnership of Street & Smith in publishing a newspaper known as the "New York Weekly. Street was also a member of the firm of J. S. Ogilvie & Co. The agreement entered into was as follows: "This agreement, made and entered into the 16th day of September, 1880, between Messrs. Street & Smith, of New York, parties of the first part, and J. S. Ogilvie & Co., of the same place, parties of the second part, by which the said parties of the first part agree to allow the said J. S. Ogilvie & Co. to publish and sell certain stories, which shall have been mutually agreed upon, in book form. In consideration of the privilege of the exclusive publication and sale of said books, the said J. S. Ogilvie and Co. agree to pay Messrs. Street & Smith a royalty of twenty cents per volume for all copies sold, the retail price of which shall be $1.50, and the same amount in proportion for any books published under this agreement, the said price of which shall be more or less than $1.50,

provided that the cost of making the electrotype plates of said books shall be paid by Messrs. Street & Smith; in all other cases the royalties shall be ten per cent. of the retail price. The payment of royalties to be made quarterly, unless by mutual consent. STREET & SMITH. J. S. OGILVIE & Co." Street died in April, 1883; the plaintiff Ormond C. Smith succeeding to bis interest. Subsequent to July 2, 1883, Street & Smith demanded of the defendant a statement of the stories pub. lished under the agreement, and the royalties due thereunder, and in compliance therewith a statement was rendered, which bore date September 1, 1883. On the 22d of September, 1883, Street & Smith and the defendant settled their accounts respecting the matters embraced within such statement, the latter paying royalties up to July 1, 1883; the firm of Street & Smith at the same time giving him a receipt in full. In the fall of 1883, Street & Smith made a claim of the defendant for royalties upon certain stories published in another series. This claim the defendant disputed, upon the ground that such publications were not books, and therefore not included in the royalty agreement, and, the plaintiffs threatening to commence an action, it was agreed that the defendant should pay $1,600 in settlement, which was done; the plaintiffs at the same time executing a release therefor. No objection was made by Street & Smith to the settlement until the commencement of this action, nearly five years thereafter, and since that time the defendant has accounted to the firm of Street & Smith, as then existing, and to their successors, under the royalty agreement, semi-annually, and paid royalties shown to be due by such accounts, the payment being accepted without objection until the commence. ment of this suit.

Edward C. James, for appellants. A. W. Gleason, for respondent.

PARKER, J., (after stating the facts as above.) The trial court found, as a fact, that after the settlement in the fall of 1883, and the execution and delivery of the release by the parties thereto, there remained no unsettled matters in connection with the publication of the stories mentioned in the complaint. In order to maintain the action, therefore, it became necessary for the plaintiffs to obtain an adjudication that the settlement was fraudulently procured, and should therefore be set aside. The trial court, however, upon the whole testimony, found as a fact that the defendant did not practice any fraud or deceit or make any false representations in procuring such settlement. And the conclusion of law that the settlements were valid transactions, and binding upon the parties thereto, necessarily followed the finding of fact made. The general term having affirmed the findings of the trial court, they are necessarily controlling here. It is asserted, however, that the plaintiffs are entitled to a reversal of the judgment because of an alleged error in refusing to hold that the burden of proof was on the defendant to show affirmatively that. in the settlements evidenced by the receipts of

September 22 and December 7, 1883, no deception was practiced or undue influence used. On the trial plaintiff's counsel, after offering in evidence a transfer by the executors of Francis S. Street, and by Ormond G. Smith, survivor of Francis S. Street, to Street & Smith, of all the right, title, and interest which the said Francis S. Street had in the copartnership of Street & Smith, asked the court to“rule that the burden of proof is now on the defendant.' The court denied the plaintiffs' request. This question was again presented by the plaintiffs in the form of a request to the court to hold, as a matter of law, that the burden of proof rested upon the defendant to show that the settlements were procured without fraud. The court refused to so find, and the exceptions taken to such refusals present the only question requiring consideration. It is asserted that, notwithstanding the finding made by the court that the defendant did not practice any fraud or deceit or make false representations in connection with the accounts as presented, or in the course of the negotiation resulting in a settlement between the parties, the result might have been quite otherwise, had the defendant been required on the trial to assume the burden of proving that, in the making of the settlements, the entire transaction was fair, open, and well understood. The appellants, conceding the general rule that the burden of proving fraud rests on him who asserts it, urge that this case constitutes an exception, because of the relations existing between the plaintiffs and defendant, which bring it within the rule cited in 2 Pom. Eq. Jur. § 951: "Where an antecedent fiduciary relation exists, a court of equity will presume confidence placed and influence exerted; where there is no such fiduciary relation, the confidence and influence must be proved by satisfactory extrinsic evidence. Following this rule, it has been frequently held in this state that, when such relation is shown to exist, it imposes the burden of proof upon the person taking securities, or making contracts, or procuring settlements inuring to his benefit, to show that the transaction was just and fair, and no undue advantage obtained because of such fiduciary relation. Mason v. Ring, 2 Abb. Pr. (N. S.) 322; Brock v. Barnes, 40 Barb. 521; Fisher v. Bishop, 108 N. Y. 25, 15 N. E. Rep. 331.

We are thus conducted to the inquiry whether the contract on its face suggests a fiduciary relation; and, if not, whether the fact that Street was a member of both firms, in view of the situation presented in other respects, requires a determination that such was the relation at the time of the settlement. A general definition of the word "fiduciary" cannot well be given which is sufficiently comprehensive to embrace all cases. Bouvier defines it as follows: "A contract by which we sell a thing to some one, on condition he will sell back to us. This term is derived from the civil law; may be defined, in trust, in confidence; fiduciary contract; an agreement by which a person delivers a thing to another, on condition he will return it to bim. It embraces trust, confidence, and refers to the integrity, the

fidelity, of the party trusted, rather than his credit or ability, and contemplates good faith, rather than legal obligation. Stoll v. King, 8 How. Pr. 298. It includes all moneys received under one of the express trusts known to the law, such as that of an executor, trustee, etc., (Smith r. Edmonds, 1 Code R. 86;) money received under an understanding that it is to be invested in a specified manner, (Noble v. Prescott, 4 E. D. Smith, 139;) moneys received by an agent for his principal, which he has no authority to disburse, but is bound to pay over, (Republic of Mexico v. Arangoiz, 5 Duer, 634.) The test in cases of agency is whether the specific moneys ought to have been kept and paid over, or whether the agent had a right to use the money. Stoll v. King, supra. Partners occupy towards each other, as to the partnership business, a fiduciary relation, and, in cases of quasi partnership, the like relation has been held to ,exist. Marston v. Gould, 69 N. Y. 225. Now, upon the face of the agreement, it appears that Street & Smith and J. S. Ogil- | vie & Co. agreed that Ogilvie & Co. might have the exclusive right of publication of certain stories belonging to Street & Smith, in book form, in consideration of their promise to pay 20 cents per volume for all copies sold, the retail price of which should be $1.50, and a proportionate amount for books retailing at more or less than $1.50, provided Street & Smith paid for making the electrotype plates; whether they should pay for the plates being made optional with Street & Smith. In the event that they should not, it was provided that they should receive a royalty of 10 per cent. on the retail price, payment of royalties to be made quarterly, unless mutually agreed otherwise. It will be observed that the agreement did not provide that a certain portion of the money received from the sale of the books should be paid over to Street & Smith. It fails to suggest in any manner that such moneys, or any portion of them, were to be deemed the moneys of Street & Smith, which the other party was bound to turn over, having no right to retain the specific moneys received. There was in such respect, therefore, no fiduciary relation. Neither were the parties to the contract partners in the publication and sale of the books. Street & Smith furnished stories to be published in book form, but exercised no other or further control over their publication and sale. For that they received a specified sum for each book sold, but they did not share in the profits as such, nor bear any part of the losses, if any there were. All of the risks of the business rested on J. S. Ogilvie & Co. If the publication of a book resulted in a loss, Street & Smith were nevertheless entitled to a fixed sum for each book sold. If it eventuated in a profit, they could not share therein, but were entitled only to the sum agreed upon for each volume disposed of. There is no feature of the agreement, as we think, which establishes the relations of the parties thereto towards each other as fiduciary in character, and it need not be examined further. So far we have consid

ered whether the situation of the parties each to the other, as indicated on the face of the agreement, was one of trust and confidence; but, appellant's counsel on the argument having attached some importance to the fact that Street was a member of both firms, we shall consider briefly whether the situation is altered by reason of it. It caunot be doubted that Street's and Ogilvie's connection with the firm of J. S. Ogilvie & Co. stamped their relations towards each other in the business of that firm as fiduciary, and in an action brought by Street, as a member thereo, against his partner, relating to his conduct in the business of the firm, he would have been entitled to all the benefits derivable by reason thereof. Indeed, it ap pears from the record before us that Street's executors instituted a suit against the defendant as surviving partner. in which he recovered a large sum of money, which was adjudged to be the share and interest which Street had in the firm assets at his death. In that action, therefore, the rights of the deceased partner were ascertained and secured. His representatives or successors have no other or further interest in, or claim against, the firm of J. S. Ogilvie & Co., except through his membership of the firm of Street & Smith, on account of transactions growing out of the royalty contract which constitutes the basis of this controversy. This suit is not brought to set aside that contract. It is not founded on a claim that, in bringing about its making and execution, Street did anything that he ought not to have done as a partner of Smith. No misconduct is alleged against him. On the contrary, the validity and binding force of the contract is recognized and asserted by the plaintiffs; the acts of which they complain being that, after the death of Street, the defendant, by means of misrepresentations, fraudulently procured the settlement, which the plaintiffs seek to set aside. The death of Street put an end to the partnership of both Street & Smith and J. S. Ogilvie & Co., and, clearly, the dead man's former connection with both firms cannot be said to have caused the survivors, in making the settlement, to deal towards each other on the basis of trust and confidence. There was therefore nothing in the relation of the parties at the time of the settlement which justified them in dealing with each other otherwise than at arms. length, and the burden rested on the plaintiffs to affirmatively establish that the settlement was fraudulently procured. This they failed to do. The judgment should be affirmed. All concur.

(127 N. Y. 159)

COLVILLE v. MILES. (Court of Appeals of New York, Second Division. June 2, 1891.)

LANDLORD AND TENANT-LEASE-TITLE TO CROPS.

When it is provided in the verbal lease of a farm and the stock on it that the tenant is to pay the rent monthly in money, and that he is to raise enough hay, oats, and straw to feed the cattle, and that the hay, etc., raised is not to be sold or removed from the farm, the title to the hay, oats, and straw is in the tenant, and it is liable to execution for his debts, though he is in