a mistrial. He expressed his impression that he should also have done that. We agree with him that, in view of the serious character of the repeated breaches of the rules, the defendant's motion that a mistrial be declared ought to have been granted. Zukas v. Lehigh Valley Coal Co., 187 App. Div. 315, 319, 175 N. Y. Supp. 408.

[3, 4] The rule allowing counsel when addressing the jury the widest latitude in discussing the evidence and presenting the client's theories falls far short of authorizing the statement by counsel of matter not in evidence, or indulging in argument founded on no proof, or demanding verdicts for purposes other than the just settlement of the matters at issue between the litigants, or appealing to prejudice or passion. The rule confining counsel to legitimate argument is not based on etiquette, but on justice. Its violation is not merely an overstepping of the bounds of propriety, but a violation of a party's rights. The jurors must determine the issues upon the evidence. Counsel's address should help them to do this, not tend to lead them astray. Cattano v. Metropolitan St. Ry. Co., 173 N. Y. 565, 66 N. E. 563. The law is so insistent that misleading prejudicial matter shall not be allowed to enter jurors' minds that under certain circumstances the asking of an incompetent question for an ulterior purpose, even though the question be not answered, will justify the setting aside of a verdict. Cosselmon v. Dunfee, 172 N. Y. 507, 65 N. E. 494. Breaches of the rule limiting counsel to a discussion of the evidence have become all too frequent of late. It is time that the bar should realize that, when counsel in a close case resort to such practices to win a verdict, they imperil the very verdict which they thus seek. Graham v. Graham, 142 App. Div. 131, 126 N. Y. Supp. 941; National Supply Co. v. Jebb, 142 App. Div. 256, 127 N. Y. Supp. 52; Harris v. Eakins, 201 App. Div. 257, 194 N. Y. Supp. 187; Loughlin v. Brassil, 187 N. Y. 128, 79 N. E. 854; Simpson v. Foundation Co., 201 N. Y. 479, 95 N. E. 10, Ann. Cas. 1912B, 321; Dimon v. New York Cent. & H. R. R. Co., 173 N. Y. 356, 66 N. E. 1; Cox v. Continental Insurance Co., 119 App. Div. 682, 104 N. Y. Supp. 421; Williams v. Brooklyn El. R. Co., 126 N. Y. 96. 26 N. E. 1048.

Misconduct was repeated. It cannot be deemed inadvertent or harmless. The judgment and order should be reversed upon the facts, and new trial granted, with costs to the appellant to abide the event.

Judgment and order reversed, and new trial granted, with costs to appellant to abide event. The said reversal and granting of a new trial are ordered for errors of fact and as a matter of discretion; justice requiring a new trial.

(207 App. Div. 496)

PRUDENTIAL SOCIETY, Inc., v. RAY.

(Supreme Court, Appellate Division, Fourth Department. January 2, 1924.) 1. Insane persons 73-Adjudication of incompetency held notice to world,

An adjudication that a person is incompetent, and the appointment of a committee, is notice to all the world that such person is incapable of making a binding contract.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

2. Insane persons

(202 N.Y.S.)

80-Husband not liable to pawnbroker loaning money on

ring intrusted to insane wife.

A husband, whose wife had been discharged from an insane asylum, and who was instructed by physicians not to restrain her, but to treat her as a normal person, was not liable, on the theory of negligence, to a pawnbroker for advances to the wife on a valuable ring, which he gave her after she had been apparently normal for a considerable time, and when there was nothing in her condition to make him anticipate that she would pawn the ring.

3. Negligence 60-Wrongdoer not liable for remote consequences.

A wrongdoer is responsible for the natural and proximate consequences of his misconduct, but not for the remote consequences.

Crouch and Sears, JJ., dissenting.

Appeal from Special Term, Erie County.

Action by the Prudential Society, Inc., against George A. Ray. From a Special Term order, affirming a judgment of the City Court for plaintiff for $585.95 damages and costs, defendant appeals. Reversed, and complaint dismissed.

Argued before HUBBS, P. J., and CLARK, DAVIS, SEARS, and CROUCH, JJ.

Coatsworth & Diebold, of Buffalo (Charles Diebold, Jr., and Edward L. Jung, both of Buffalo, of counsel), for appellant.

Desbecker, Fisk, Newcomb & Block, of Buffalo (Walter C. Newcomb, of Buffalo, of counsel), for respondent.

CLARK, J. Plaintiff is a foreign corporation doing business in the city of Buffalo, and defendant is a resident of that city.

[1] Defendant's wife, Mrs. Vera B. Ray, was duly adjudged an incompetent person on the 24th day of December, 1914, and defendant was appointed committee of her person and property, and he thereupon qualified as such committee and entered upon the discharge of his duties. The proceedings which resulted in the appointed of defendant as such committee appear to have been regular, and were notice to all the world that the adjudged incompetent person was incapable of making a binding contract. Wadsworth v. Sharpsteen, 8 N. Y. 388, 59 Am. Dec. 499; McCarthy v. Bowling Green Storage & Van Co., 182 App. Div. 18, 169 N. Y. Supp. 463

[2] Prior to defendant's appointment as such committee he knew that his wife had been in the habit of pawning articles of jewelry and giving away her clothing, but for some time previous to her dealings. with plaintiff she had been living with her husband and had been apparently normal, and had attended to her ordinary duties in managing her husband's household. On the 25th day of December, 1919, defendant gave to his wife a valuable diamond ring as a Christmas present. She was living with her husband and he was caring for her, and such a gift was a reasonable one, considering their relationship and station. in life. On the 2d day of April, 1920, Mrs. Ray applied to plaintiff, a pawnbroker, with offices in the city of Buffalo, for a loan on her diamond ring, and obtained $200 at that time, and within two or three days obtained an additional $100 on the same security, and within a

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

week thereafter obtained an additional $200 from plaintiff on the same security, making in all $500.

Prior to these transactions plaintiff had never had dealings with defendant's wife, and she was a stranger to its Buffalo manager. Just before this time defendant's wife left her home and was gone about three weeks, and was evidently on a protracted debauch. Finally defendant got track of her in Buffalo and brought her home, and after that learned of the fact that she had pawned her ring to the plaintiff. Defendant thereupon demanded of plaintiff the return of the ring, which was refused, unless defendant would return the money plaintiff had loaned on it. This being refused, defendant began an action to replevy the ring. The case was tried, and defendant recovered the property, together with $43.20 costs. Then plaintiff began this action to recover the amount of money it had advanced defendant's wife on the ring, with the costs it had been obliged to pay in the replevin action.

The theory on which plaintiff brought this action was that defendant, knowing the habits of his wife to pawn her jewelry and give away her clothing, negligently, recklessly, and carelessly intrusted to his wife this valuable diamond ring, and permitted her to go at large. I cannot see where defendant omitted any duty that he owed to the plaintiff. His wife was living with him; for some time she had been in an apparently normal condition, and was attending to whatever duties were required of her as his housewife, and his giving to his wife a Christmas present of a diamond ring, which he could well afford, was quite in keeping with their circumstances and station in life.

Although his wife had been declared an incompetent person, and he was the committee of her person and property, her condition was not such as required her confinement, and she was in no way a menace to the public. Indeed, she had been discharged from the institution where she had been confined for a period, the authorities declining to keep her longer, and the physicians in charge of said institution had advised defendant not to keep his wife under restraint, but to treat her as a normal person. The theory on which this action was brought was based wholly upon the alleged negligence of defendant. I cannot see where any act or omission of defendant was the proximate cause of plaintiff's loss. There was no act or omission of defendant which directly led to plaintiff's transactions with his (defendant's) wife. Defendant would not be responsible to plaintiff on the theory of negligence, unless the act of which plaintiff complains flowed directly and naturally from defendant's alleged misconduct.

[3] While a wrongdoer is responsible for the natural and proximate consequences of his misconduct, and also such as might reasonably have been apprehended, a wrongdoer is not liable for a remote cause, and he is only liable when the injury resulting flows directly from his omission. Boyce v. Greeley Square Hotel Co., 228 N. Y. 106, at page 112, 126 N. E. 647; Potorik v. State, 111 Misc. Rep. 325, 181 N. Y. Supp. 181. There was nothing in the condition of defendant's wife, when she left her home just prior to the transactions with plaintiff, to have led defendant to anticipate that she would leave home or pawn her ring. For a considerable time she had been apparently normal, and

Sup. Ct.)

PRUDENTIAL SOCIETY V. RAY
(202 N.Y.S.)

was being treated by defendant as a normal person, under the explicit directions of the physicians, who had discharged her from the institution in which she had been last confined, and defendant was justified. in relying on the judgment of the physicians in regard to the manner in which his wife was to be treated.

Ballinger v. Rader, 153 N. C: 488, 69 S. E. 497. This was an action for wrongful death against the father and mother of an insane man, who killed a woman. The action was brought by the administrator of the murdered woman's estate, and at the close of the evidence the court directed a nonsuit, and plaintiff appealed. The Supreme Court of North Carolina affirmed the judgment of nonsuit, saying in its opinion:

"The evidence fails to show that the defendants were in any way responsible for the unfortunate killing of plaintiff's daughter by their insane son, Lonnie W. Rader. The son had been regularly discharged by the authorities of the hospital, upon whom the law imposed the duty of determining whether or not a patient was safe to be at large. These defendants had a right to rely upon the judgment of the hospital authorities, unless there had been a subsequent change in their son's condition, which is not shown. The homicide was not the natural and logical consequence of Lonnie W. Rader being at large. * * * The discharge of Rader, his absence from the hospital, his presence * * Upon in Catawba county, and at the church on the day of the homicide, was a mere condition, which accompanied, but did not cause, the imjury.

a review of the evidence we are of opinion that his honor did not err in holding that it was not sufficient to be submitted to the jury in the support of an allegation that the homicide was caused by the negligence of the defendants."

In this North Carolina case the man who committed the homicide had been confined in an institution for a time, and had been discharged. and was permitted to be at large. In the instant case defendant's wife had been confined in an institution for a time, but had been discharged by the physicians in charge, with explicit instructions to defendant not to restrain his wife, but to treat her as a normal person.

Here, as in the North Carolina case, defendant had a right to rely upon the judgment of the hospital authorities, there being no subsequent change in the condition of his wife, until she suddenly left her home just before pawning her ring to this plaintiff. The evidence did not justify a finding that defendant was negligent, or that he had been remiss in any duty he owed to the plaintiff. It is unfortunate for plaintiff that it dealt with an adjudged incompetent person; but, after defendant's wife had given plaintiff's manager her name and address, he took no steps to investigate her situation and circumstances, which it would seem would have been advisable.

The theory on which the action was brought and tried being that defendant was negligent, and such negligence not being established by the evidence, the judgments should be reversed on the law, and the complaint dismissed, with costs.

Judgment of Special Term and judgment of Buffalo City Court reversed on the law, and complaint dismissed with costs in all courts to the appellant. All concur, except SEARS, and CROUCH, JJ., who dissent in an opinion by CROUCH, J.

CROUCH, J. (dissenting). Plaintiff says that defendant, being committee of the person and property of Vera B. Ray, and adjudged incompetent, negligently intrusted to her custody a diamond ring, whereby plaintiff was damaged to the amount which it advanced in good faith to said incompetent upon the security thereof. The answer is a denial.

Vera B. Ray is the wife of defendant. In December, 1914, upon the petition of defendant, she was adjudged incompetent by reason of habitual drunkenness. The proof in that proceeding showed that "on a great many occasions" she had pawned or given away her jewelry and wearing apparel in order to obtain drink. She had been drinking to excess for five years prior to adjudication, and had been during that period an inmate in five different institutions for varying lengths of time. Subsequent to adjudication and down to April, 1920, she had been confined in state hospitals and private institutions on five different occasions. She was released from the latest one in March, 1920. In the intervals she lived in defendant's home under the charge of attendants with instructions from the doctors to treat her so far as possible as a normal person. During that period and presumably in those intervals she had on three or four occasions pawned articles of jewelry and clothing. Defendant had on each occasion promptly replevied them. It is fair to assume that he had learned there was no defense to such actions. On December 25, 1919, defendant bought a diamond ring, valued at $1,000, and gave it to his incompetent wife. On April 2, 1920, she pledged the ring with plaintiff as security for a loan of $200. On April 5 and April 12 following she obtained further advances of $300, making a total loán of $500. Between those dates she was away from home, her whereabouts unknown to defendant. On the three occasions when she obtained loans from plaintiff, her appearance and conduct were apparently normal and rational. She gave plaintiff her correct name and address. Plaintiff made no investigation of her status or of her title and right to possession of the ring. Defendant subsequently recovered the ring under a judgment in replevin.

The present action was tried before a judge of the City Court of Buffalo. Plaintiff had judgment, which was affirmed on appeal by the Special Term of the Supreme Court in Erie county. I disagree with the conclusion reached by the majority on the appeal here. My reasons are briefly as follows: To constitute actionable negligence there must be (1) a duty to the plaintiff to observe care; (2) a breach of such duty; and (3) injury suffered in consequence.

1. Whether the defendant owed a duty to the plaintiff here to observe care was at least a question of fact. The existence of such a duty is, and has been time out of mind, determined by the test of whether a prudent man would under the circumstances have foreseen harm to the plaintiff from a lack of reasonable care in his conduct. If he would, a duty was owing; otherwise, not. Wittenberg v. Seitz, 8 App. Div. 439, 40 N. Y. Supp. 899 (Fourth Department). Heaven v. Pender, L. R. (11 Q. B. Div.) 503. McPherson v. Buick Motor Co., 217 N. Y. 382, 389, 111 N. E. 1050, L. R. A. 1916F, 696, Ann.